https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12380

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL SUIT NO. E023 OF 2022** JOHN NJUGUNA KIMANI ............................ PLAINTIFF/APPLICANT VERSUS THE CO-OPERATIVE BANK OF KENYA LTD…………………………….. 1ST DEFENDANT/RESPONDENT WHITE SILVER AUCTIONEERS ..... 2ND DEFENDANT/RESPONDENT **RULING** 1. Before this Court is the Plaintiff/Applicant's Notice of Motion dated 30th September 2025. The application is expressed to be brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution of Kenya, 2010; and all other enabling provisions of the law. 2. The Applicant seeks the following substantive orders: 1. ***THAT this Honourable Court be pleased to grant the Applicant leave to file his Further List of Documents and Bundle of Documents out of time;*** 2. ***THAT upon allowing Order 1, deem the Plaintiff's Further List of Documents filed as properly on record;*** 3. ***THAT costs of this Application be provided for.*** 3. The application is supported by the supporting affidavit of JOHN NJUGUNA KIMANI, the Plaintiff/Applicant, sworn on 3rd October 2025, and the Applicant's written submissions dated 9th June 2026. 4. The Application is vehemently opposed by the Defendants/Respondents vide the replying affidavit of BRIGID SANGUTA, a Business Banker with the 1st Defendant, sworn on 16th February 2026, and the Defendants/Respondents' written submissions dated 12th February 2026. 5. The Plaintiff instituted this suit on 26th August 2022, challenging the manner in which the Defendants exercised their statutory power of sale over the property known as NAKURU/MUNICIPALITY BLOCK 29/1905. 6. The gravamen of the Plaintiff's case is that the suit property was disposed of at a gross undervalue and in breach of the statutory obligations imposed upon a chargee by the provisions of Section 97 of the Land Act, 2012. The Plaintiff further contends that notwithstanding the disposal of the charged property, the 1st Defendant has continued to demand additional sums allegedly outstanding under the loan facility, thereby giving rise to the present dispute. 7. Subsequent to the filing of the suit and during preparations for hearing, the Plaintiff was able to trace and obtain documents directly touching upon the matters in controversy before this Court. He now seeks leave to introduce a Sale Agreement dated 24th August 2022 and a Loan Statement relating to the financial facility that forms the subject matter of this dispute. 8. A brief procedural history is essential. On 27th February 2025, the matter was set for hearing but did not proceed as the Plaintiff's then-Advocates on record had filed an application seeking leave to withdraw from acting for the former. That application was set for hearing on 11th March 2025 when the same was allowed. 9. The matter was later slated for hearing on 7th October 2025. However, on the eve of the hearing, the Plaintiff's Advocate, who had hitherto ceased acting for the former, filed a Notice of Appointment together with the present application ostensibly seeking leave to file additional documents. 10. The Defendants contend that the foregoing paints the indelible picture of a Plaintiff who is unsure of its prospects in a case and who seeks to engage in a multiplicity of fishing expeditions to source speculative evidence and/or documents to aid his case that now stands perilously on the edge of mootness. 11. The Applicant through his Counsel submits that the documents sought to be introduced are material, relevant, and necessary for the fair and effectual determination of the issues in controversy between the parties.The Sale Agreement reflects a consideration of Kenya Shillings Eighteen Million Eight Hundred and Ninety-Eight Thousand (Kshs. 18,898,000/-) in respect of the very property that forms the subject matter of this dispute. This document bears directly upon the question whether the Respondents obtained the best price reasonably obtainable for the property and consequently whether they discharged the statutory duty imposed upon them by law. That the Loan Statement relates directly to the issue of the alleged outstanding indebtedness which the 1st Defendant continues to demand from the Plaintiff even after disposal of the charged property. The Applicant relies on the Supreme Court decision in ***Mohamed Abdi Mahmud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR*** for the principles governing the admission of additional evidence. He submits that the documents are directly relevant, in the interest of justice, and could not have been obtained with reasonable diligence for use at the trial. He further submits that the documents have already been served upon the Respondents and that no prejudice will be occasioned to them as the hearing has not commenced. No witness has testified, no evidence has been tendered, and no party has closed its case. 12. On the issue of the alleged wrong citation of procedural provisions, the Applicant relies on the Court of Appeal decision in ***D.T. Dobie & Company (Kenya) Limited v Muchina [1980] eKLR***, submitting that a mistaken citation of a statutory provision is not fatal where the Court possesses jurisdiction to grant the relief sought and where no prejudice is occasioned. 13. The Respondents contend that the application is incurably defective as it is couched in a tenor unpalatable to the rules of introduction of new and/or additional documents subsequent to the close of pleadings and not on aspects of recalling witnesses as envisaged in the rules relied upon in the face of the application. 14. They argue that the Plaintiff's reliance on Order 18 Rule 10 of the Civil Procedure Rules, which deals with recalling witnesses, is fatally mistaken as the hearing in the suit is yet to commence. The Respondents contend that the application fails to correctly bring itself upon the requisite procedural edicts established under the auspices of the Civil Procedure Act and its appurtenant rules. The Respondents further submit that the application is a delay tactic. They point to the procedural history where the Plaintiff's Advocates ceased acting and subsequently resumed representation on the eve of the hearing, together with the present application. They argue that the timing of the application is meant to forestall the hearing as the Plaintiff has come to the belated realization that his chances of success are non-existent. 15. The Respondents contend that the Plaintiff has failed to state reasons why the documents could not have been filed at the pre-trial stage and has also failed to set out the relevance of the documents. They rely on the case of ***Mulu v Total Kenya PLC (Cause E629 of 2021) [2025] KEELRC 22 (KLR)*** which set out the precepts that courts ought to rely upon in deciding whether to grant leave for production of additional evidence, namely: the reasons for not filing the records before the pre-trial conference; the nexus and/or relevance of the records to the matters in dispute; and the prejudice that the Respondent is likely to suffer as a result of granting the request and whether such prejudice can be remedied in some way. 16. The Respondents also argue that they stand to suffer immense prejudice if the orders sought are granted since the same would lead to a gross prolongation of the trial process and a convolution of the issues set to be adjudged over. Finally, the Respondents submit that since they have proven the unmeritorious nature of the subject application, they should be awarded the costs of the application. 17. Having considered the record, the following issues arise for determination: ***a. Whether the Applicant has established sufficient grounds for this Honourable Court to grant leave to file his Further List of Documents and Bundle of Documents out of time;*** ***b. Who shall bear the costs of the application?*** 18. The admission of documents filed out of time is a matter that falls within the discretionary jurisdiction of this Court. Such discretion is intended to facilitate the just, expeditious, proportionate, and affordable resolution of disputes and ought to be exercised in a manner that advances substantive justice rather than one that elevates procedural technicalities above the determination of disputes on their merits. 19. The constitutional underpinning for such an approach is found in Article 159(2)(d) of the Constitution of Kenya, 2010 which obligates Courts to administer justice without undue regard to procedural technicalities. Equally, Sections 1A, 1B and 3A of the Civil Procedure Act vest in the Court broad powers necessary to achieve the overriding objective of civil litigation and to make such orders as may be necessary for the ends of justice. 20. The Supreme Court in ***Mohamed Abdi Mahmud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR*** laid down the governing principles on allowing additional evidence as follows: ***“The additional evidence sought to be introduced are academic, educational and employment records of the Appellant. It is directly relevant to the single issue before the court and will most likely impact upon the Appeal. It seeks to remove any vagueness or doubt over the status of the academic qualifications in question and therefore has a direct bearing on the main issue in the suit.”*** 21. Applying the foregoing principles to the present case, it becomes readily apparent that the Applicant has satisfied the threshold necessary for the exercise of this Court's discretion. 22. First, the documents sought to be introduced are directly relevant to the matter before the Court. The Sale Agreement reflects a consideration of Kshs. 18,898,000/- in respect of the very property that forms the subject matter of this dispute. It goes directly to the heart of the Plaintiff's claim that the property was sold at a gross undervalue. The Loan Statement relates directly to the alleged outstanding indebtedness which the 1st Defendant continues to demand. The nexus between the proposed documents and the issues in dispute is not only apparent but substantial. Indeed, both documents concern matters already placed before the Court through the pleadings and neither introduces a new cause of action nor a new line of litigation.Secondly, the Applicant has explained that the documents were traced subsequent to the filing of the suit and immediately placed before the Court through the present application. While the explanation is brief, the Court takes the view that it is not far-fetched to believe that the documents may have been with the Applicant's auditors or among other documents. It is not an unreasonable and unbelievable explanation. The Applicant states: ***"I have been able to trace documents related to the adjudication of this matter which are yet to be filed."*** 23. Thirdly, the Applicants submit that the documents are not so voluminous as to make it difficult for the Respondents to respond effectively. The Further List of Documents contains only two documents: a Sale Agreement and a Loan Statement. This is not a voluminous bundle that would prejudice the Respondents' ability to respond. Fourth, there is no allegation that the documents are forged, fabricated, or otherwise inadmissible. Neither have the Respondents demonstrated fraud, bad faith, or any intention to overreach on the part of the Applicant. Their objection is directed solely at the timing of production. In ***Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103***, the Court of Appeal stated: ***"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits."*** 24. On the issue of the alleged wrong citation of procedural provisions, a mistaken citation of a statutory provision or procedural rule is not fatal where the Court possesses jurisdiction to grant the relief sought and where no prejudice is occasioned to the opposing party. The Court is concerned with the substance rather than the form of an application. The Court retained inherent jurisdiction under Sections 1A, 1B, and 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution to make such orders as may be necessary for the ends of justice. The objection raised by the Respondents elevates form over substance and is accordingly overruled. 25. On the issue of the alleged delay, the Court notes that this matter was filed on 26th August 2022. While there has been some delay, the procedural history reveals that the delay has not been solely attributable to the Applicant. The Applicant's Advocates ceased acting and subsequently resumed representation. This Court also notes that the hearing of this suit has not commenced. No witness has testified, no evidence has been tendered, and no party has closed its case. The Court is therefore not being called upon to reopen proceedings, recall witnesses, or disturb evidence already on record. 26. Section 27(1) of the Civil Procedure Act provides that costs shall follow the event unless the Court for good reason orders otherwise. The successful party here is the applicant, however, in the circumstances of this case, this Court finds that the Applicant has been constrained to approach this Court for purposes of placing before it documents that are directly relevant to the real issues in controversy. The Application is meritorious, and the documents sought to be introduced are material to the just determination of the suit. However, the application could have been brought earlier, and the Respondents were entitled to oppose it. In the circumstances, it is fair and just that the costs of the Application be in the cause. 27. Accordingly, the notice of motion dated 30th September 2026 is merited giving rise to issuance of the following orders; 1. ***THAT the Applicant is hereby granted leave to file his Further List of Documents and Bundle of Documents out of time.*** 2. ***THAT the Plaintiff's Further List of Documents and Bundle of Documents dated 30th September 2025 are hereby deemed as properly filed and admitted on record.*** 3. ***THAT the Applicant shall serve the said Further List of Documents and Bundle of Documents within fourteen (14) days from the date of this Ruling.*** 4. ***THAT the Respondents shall have leave to file any responses to the said documents within twenty-one (21) days from the date of service.*** 5. ***THAT costs of this Application shall be in the cause***. **Dated, signed and delivered at Nakuru this 30th day of July, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh C/A Muriithi holding brief for Kisilah for Defendant N/A for Maina for Plaintiff