https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8483

Friendrich v Pevans East Africa Ltd t/a Sportpesa & another (Commercial Case 347 of 2017) [2026] KEHC 8483 (KLR) (Commercial & Admiralty) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8483 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Admiralty Commercial Case 347 of 2017 PM Mulwa, J June 11, 2026 Between John Friendrich Plaintiff and Pevans East Africa Ltd t/a Sportpesa 1st Defendant Bradely Limited t/a Pambazuka National Lottery 2nd Defendant Ruling 1.This ruling is in respect of the 1st Defendant’s Notice of Motion dated 17th April 2026 brought under Order 7 rule 16, Order 13 rule 1 of the Civil Procedure Rules and Sections 1A,1B, & 3A of the Civil Procedure Act. The Applicant seeks leave to file and serve a further defence witness statement and documents to introduce new evidence discovered regarding the identity of the Plaintiff. And that the new evidence be admitted and deemed as part of the evidence in this suit. 2.The application is premised on the grounds of the face of the record and supported by the annexed affidavit of Robert Macharia, the Director of the 1st Defendant. He depones that the 1st Defendant has discovered that the Plaintiff is an international fraudster and conman in Germany and Australia. That upon the said discovery, the 1st Defendant moved the court with an application to recall the Plaintiff, which application was dismissed. That the 1st Defendant has discovered from the Registrar of births letter dated 14th February 2024 that the Certificate of Birth annexed by the Plaintiff is a forgery as the serial number 0260599342 belonged to one John Mironge Muriuki and not the Plaintiff. 3.He averred that it is therefore in the interest of justice that the application be allowed as the Applicant challenges the locus standi of the Plaintiff. 4.In the supplementary affidavit the deponent asserts that the present application is not res judicata. That the July 31, 2025 dismissal concerned recall for further cross‑examination, whereas the current application seeks leave to file an additional witness statement. 5.He averred the 1st Defendant ceased operations in 2019 after its gaming licence was not renewed in 2018 and therefore denies receiving any deposits from the Plaintiff or other persons thereafter. He states that the SportPesa trademark and business name were assigned to SportPesa Global Holdings Ltd (UK) on 2nd June 2020. 6.The Plaintiff opposes the application and filed a replying affidavit sworn on 7th May 2026. He depones that the application is fictitious, an abuse of the court process, and intended to delay the determination of the case. He averred that the application is res judicata as it is similar to the application dated 1st September 2023 which was heard and dismissed by the court. He deponed that at the hearing he was cross examined on his identity and therefore the issue is not a live controversy warranting the reopening of the case. 7.He further states that he is a Kenyan citizen who validly registered and operated a SportPesa account using a mobile number registered in his name, which has served as the sole medium of his transactions with the 1st Defendant for over nine years. He avers that throughout that period the 1st Defendant accepted deposits, validated bets, processed transactions, and continued to recognize and deal with him as a legitimate customer. 8.According to the Plaintiff, the 1st Defendant, being a regulated entity subject to KYC and AML obligations, is estopped from disputing his identity after having benefited commercially from his participation on its platform. He asserts that the allegation that he is a fictitious person is a belated attempt to avoid liability for the claimed jackpot winnings of Kshs. 109,234,886/=. 9.He deponed that he will be prejudiced by reopening the suit and maintains that the Defendant had ample time to conduct due diligence 10.By the directions of the court, the application was heard by way of written submissions. Analysis and determination 11.I have considered the application, the affidavits filed both in support and in opposition thereto, together with the rival submissions by counsel. I have flagged out one issue for determination, that is, whether the 1st Defendant has established sufficient grounds for leave to file a further witness statement and additional documents after the close of the Plaintiff’s case. 12.The Court’s exercise of its discretion to permit amendment or the reception of fresh evidence is governed by the overriding objective in Sections 1A and 1B of the Civil Procedure Act to deal with matters justly, proportionately and efficiently. Order 7 rule 16 of the Civil Procedure Rules affords the Court wide discretion to allow amendments and further evidence where it is just to do so. The rule provides as follows:1.Any ground of defence which has arisen after action brought, but before the defendant has delivered his defence and before the time limited for his doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence; and if, after a defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply.2.Where any ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counterclaim arises after the time limited for delivering a reply has expired, the plaintiff may, within fourteen days after such ground of defence has arisen or at any subsequent time, by leave of the court, deliver a further reply, as the case may be, setting forth the same.3.Whenever any defendant in his defence, or in any further defence as mentioned in sub-rule (2), alleges any ground of defence which has arisen after the commencement of the suit, the plaintiff may deliver a confession of such defence, and may make application by summons for his costs up to the time of pleading of such defence. 13.In exercising that discretion, the Court should ensure that the new evidence does not occasion prejudice to the Plaintiff, and the evidence should help the court in determining the real issue in dispute. 14.The Applicant contends that it has obtained fresh evidence from the Registrar of Births, casting doubt on the Plaintiff's identity as per the letter dated 14th February 2024, asserting that the birth certificate relied upon by the Plaintiff bears a serial number belonging to another person. The Applicant argues that the evidence raises serious questions regarding the Plaintiff's identity and, consequently, his locus standi to institute and maintain the present suit. The 1st Defendant intends to call the Registrar of Births as a witness to adduce the letter dated 14th February 2024. 15.The Plaintiff opposes on grounds of res judicata, abuse of process and prejudice, urging that identity was traversed during the hearing and that the Court dismissed a previous application seeking his recall for further cross-examination. He further contends that the present application is intended to delay the conclusion of a matter that has been pending since 2017. 16.Although the Plaintiff has invoked the doctrine of res judicata, I am not persuaded that the present application is barred by Section 7 of the Civil Procedure Act. The application dismissed on 31st July 2025 sought the recall of the Plaintiff for further cross-examination. In contrast, the present application seeks leave to place before the Court additional documentary evidence and a further defence witness statement. The causes of action and reliefs sought are therefore distinct. 17.More importantly, the Court cannot ignore the nature of the proposed evidence. The issue raised is not peripheral. It concerns the identity of the Plaintiff and the legitimacy of documents allegedly relied upon in prosecuting the claim. If the allegations are ultimately established, they would have a significant bearing on the Court's determination of the dispute. 18.In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court held that the primary concern of the Court is to do justice to the parties and that procedural rules should not be applied in a manner that defeats substantive justice. 19.Similarly, in Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, Apaloo JA observed that unless there is fraud or intention to overreach, errors and omissions should not necessarily deprive a party of the opportunity to have a dispute determined on its merits. The Court is enjoined under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. 20.I am alive to the fact that the suit is old and that the Plaintiff has already testified. However, the prejudice occasioned to the Plaintiff can be adequately addressed by granting him leave to respond to the additional evidence and, if necessary, to adduce rebuttal evidence. On the other hand, excluding evidence which directly challenges the Plaintiff's identity may result in the Court determining the dispute without the benefit of material that could substantially affect the outcome. 21.In the circumstances, I am satisfied that the interests of justice favour the admission of the proposed evidence. The Court should, as far as possible, determine disputes based on all relevant material rather than shut out evidence that may assist it in arriving at the truth. 22.Accordingly, the Notice of Motion dated 17th April 2026 is hereby allowed on the following terms:i.The 1st Defendant is granted leave to file and serve the further witness statement and additional documents annexed to the application within seven (7) days.ii.The said witness statement and documents shall be deemed duly filed upon payment of the requisite court fees.iii.The Plaintiff shall have leave to file and serve a supplementary witness statement and any rebuttal documents within fourteen (14) days of service.iv.Either party shall be at liberty to apply for the recall of any witness, if necessary, for purposes limited to the additional evidence hereby admitted.v.Costs of the application shall abide the outcome of the suit.Orders accordingly. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE 2026.P.M MULWAJUDGEIn the presence of:Mr. Nyangena for PlaintiffMr. Gakaria for 1st Defendant/applicantMs. Leven h/b for Mr. Njenga for 2nd DefendantCourt Assistant: Lispa