https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11949

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **MATRIMONIAL PROPERTY CASE NO. E007 OF 2024** **CATHERINE MUMBI NGANGA.…………………….PLAINTIFF/RESPONDENT** **VERSUS** **ZAKAYO MUTHII KINYUA...................................DEFENDANT/APPLICANT** **RULING** **Introduction** 1. The Application dated 23rd January 2026 seeks for orders of leave to introduce further evidence notwithstanding that the hearing has already commenced. 2. In opposition to the Application, the 1st Respondent filed a Replying Affidavit dated 16th February 2026. **Defendant/Applicant’s Case** 1. The Applicant depones that upon commencement of the hearing of the instant matter, he obtained a bank statement from Co-operative Bank that shows the payments made towards motor vehicle registration number KCH 689G including the bundle of receipts showing the payments he used to make on various dates on purchase of construction materials for the matrimonial home as well as handwritten list of the expenses incurred during its construction and the quotation. 1. The Defendant/Applicant explained that the said evidence was unavailable to at the time of filing the pleadings. The Applicant deposes that the admission of the further evidence is necessary in the interests of justice, as it will enable the Court to make a fair assessment parties’ contribution, the acquisition and improvement of the property, their conduct and financial resources, all which are relevant considerations in the distribution of the matrimonial property. 2. The Applicant depones that the next hearing date is scheduled for 3rd February 2026 and failure to admit the evidence at the current stage may render his case incomplete and cause irreparable injustice. **The Plaintiff/Respondent’s Case** 1. The Respondent swore the instant suit which seeks fair and equitable division of matrimonial property acquired by herself and the Applicant during the subsistence of their marriage began 1st March, 2024. She deposes that majority of those properties were registered in their joint names, a clear demonstration of mutual contribution and intention. She further asserts that the Applicant entered appearance and filed his pleadings hence had fully participated in the proceedings. 1. The Plaintiff recalled that at one point, the matter was referred to Court Annexed Mediation and both parties voluntarily attended mediation sessions which unfortunately collapsed. The matter was thereafter mentioned twice and was eventually certified ready for hearing after parties were granted an opportunity to file any additional documents. 2. The Plaintiff/Respondent deposes that on 29th October, 2025, the hearing and commences in which she testified and produced her documents without objection. The matter was subsequently adjourned to 3rd February 2026 due to judicial time constraints and her two witnesses could not testify. 3. The Plaintiff/Respondent depones that the Applicant filed the instant application three months after the commencement of the hearing hence is an afterthought and a waste of judicial time. The Plaintiff/Respondent contends that pursuant to Order 11 of the Civil Procedure Rules, a matter is certified ready for hearing upon parties filing their documents and ensuring compliance. Once the matter is certified ready for hearing and hearing has commenced, parties are bound by their pleadings and filed documents unless exceptional circumstances are demonstrated. Further, the Plaintiff/Respondent contends that while Courts retain discretion to admit further evidence, such discretion must be exercised judiciously and only where sufficient cause is shown. 1. The Plaintiff/Respondent observed that the Applicant seeks to introduce bank statements from his personal Co-operative Bank Account dating between January 2016 and November 2018 yet the said statements are not new evidence as they relate to his personal account and have always been in his possession, custody and knowledge. Further, that Applicant seeks to introduce cash sale receipts dated between 2016 and 2020, documents that predate the filing of the suit. Additionally, the handwritten list of expenses annexed is a document that was always within his knowledge and control. 2. The Respondent further contended that the Applicant has not demonstrated discovery of new evidence or shown that such evidence could not with due diligence have been produced before the hearing commenced. Having sat through her testimony, the Respondent states that the Applicant cannot now seek to fill gaps in his case upon realizing weaknesses therein. She further states that she would be greatly prejudiced if the Application is allowed. Furthermore, litigation must come to an end and it would be an endless process if parties were permitted to reopen their cases midstream without sufficient cause. 1. The Respondent contended that that should the Court be inclined to admit the said receipts, she shall insist on summoning their makers for purposes of cross examination pursuant to the Evidence Act. 2. The Respondent deponed that the Applicant in his Replying Affidavit dated 24th June 2024 admitted that motor vehicle registration number KCH 689G was acquired on higher purchase and he claims substantial and sole contribution towards its purchase, which is false as the vehicle was operated as a taxi under Uber by various drivers, who would remit the daily and monthly incomes through her accounts and then he would use the funds to pay off the loan. She further avers that after the purchase of the vehicle and before they could conclude payments of the higher purchase price, the vehicle was almost being auctioned which forced her to take out a loan from her chama in 2018 to assist in paying the balance. 1. The Respondent contended that they agreed on joint registration of matrimonial properties and any disposition during the subsistence of their marriage was mutually agreed. She further asserts that registration of property in joint names creates a rebuttable presumption of equal beneficial interest under Section 14 of the Matrimonial Property Act, a fact not denied by the Applicant. Further, Article 50 of the Constitution guarantees a fair hearing which includes procedural fairness to both parties. She further asserts that the instant application is an abuse of the court process and intended to delay the expeditious determination of the matter contrary to Sections 1A and 1B of the Civil Procedure Act. 2. The Applicant filed a Further Affidavit dated 21st April 2026 in which he contends that the Respondent shall not suffer any prejudice if the evidence is admitted at the current stage as the matter is yet to be concluded. He further depones that the application is not an afterthought or a waste of judicial time as it was filed promptly and in good faith after the discovery of material evidence directly related to the disposition of the matrimonial assets in dispute. 3. The Applicant further states that while Order 11 of the Civil Procedure Rules provides for pre-trial directions, compliance with such directions does not extinguish the court’s overriding discretion to admit further evidence where justice requires. He further adds that the principle that parties are bound by their pleadings does not bar the reception of evidence absolutely where the evidence to be adduced is consistent with the pleaded case and supports and supplements it. The applicant avers that he did not withhold the evidence as his bank statements were obtained on 21st January 2026 as is evident from the statement date on the said statements. He further adds that the cash receipts represent the actual payments made by him for construction materials used in the development of the matrimonial home. He argues that whilst the receipts bear the dates ranging from 2016 to 2020, their relevance only became clear to him upon the respondent’s testimony during the hearing where she disputed her financial contribution. 4. The Applicant depones that the Respondent has not demonstrated any prejudice as the matter is part heard and she will have the full opportunity to respond, cross examine and if necessary, adduce further evidence. However. he contends that he shall be prejudiced if the Application is not allowed as the evidence goes to the core of contribution. He further states that the Respondent did not take a loan from her chama towards the purchase of the suit motor vehicle as she has not produced any evidence in support of the same. 1. The applicant argues that the presumption of equal ownership of matrimonial property is rebuttable upon proof of contribution. The evidence he seeks to produce demonstrates his sole financial contribution and is central to that determination. 2. Parties put in written submissions. **The Applicant’s Submissions** 1. The Applicant relied on the case of **Raiply Woods (K) Ltd vs Sub County Co-operative Office, Turbo & Soy & 2 Others [2026] KECA 334 (KLR)** and submitted that the court has wide, and unfettered discretion to admit further evidence at any stage of the proceedings. The Applicant further relied on the cases of **African Banking Corporation Limited vs Make Limited & 3 Others [2026] KEHC 5827 (KLR)**; **Moboko Shembekho Ltd vs Kiptalam & 2 Others; Agricultural Development Corporation (Third party) [2023] KEELC 19982 (KLR)** and **Ketno Sacco & 2 Others vs** **Namu [2022] KEHC 16124 (KLR)** and submitted that the evidence sought to be introduced is documentary in nature and directly relates to financial contribution towards acquisition and development of matrimonial property, which is the central issue for determination before the court. The evidence goes to the heart of the dispute. 1. On the issue of delay and diligence, the Applicant submitted that the cooperative bank statements were only obtained on 21st January 2026 after a formal request to the bank and therefore were not within his possession at the time of filing pleadings or commencement of the hearing. He further submitted that the relevance of certain receipts became apparent during the Respondent’s testimony in court where financial contribution was directly placed in issue. He therefore argued that there has been no inordinate delay and that the Application was brought promptly upon acquisition and realization of the evidential significance of the documents. 2. The Applicant argued that the documents sought to be introduced are not an attempt to patch weaknesses in his case but are intended to rebut specific allegations made during oral testimony and to assist the court in determining contribution on the basis of complete financial records. On the issue of prejudice, the Applicant argued that no prejudice shall be suffered by the Respondent as the matter is still part heard and no final judgment has been delivered. Further the Respondent will have an opportunity to respond to the documents, challenge their authenticity and file supplementary documents if necessary. The Applicant reiterated that the evidence sought to be introduced is highly material, directly relevant to the central issue of contribution in the matrimonial property dispute and will assist the court in arriving at a fair and just determination of the merits. **The Respondent’s Submissions** 1. The Respondent relied on the cases of **Ladd vs Marshall [1954] 1 WLR 1489**; **Samuel Kungu Kamau vs Republic [2015] eKLR**; **Wanje vs A.K. Saikwa (1984) KLR 275** and **Safe Cargo Limited vs Embakasi Properties Limited & 2 Others [2019] eKLR** and submitted that the Applicant has not shown that the evidence he seeks to adduce was not with due diligence available before, the influence the evidence will have on the case and the credibility of the receipts which do not bear official stamps on the face of them. She further submitted that the documents sought to be introduced by the Applicant were always within his possession, custody and knowledge. The Applicant conceded that he formally requested for the bank statements and obtained them on 21st January 2026, which is two years after the commencement of the suit and three months after the hearing began on 29th October 2025. The right to apply for bank statements was always available to the Applicant and he cannot address the same as discovery. As for the cash sale receipts, they predate the filing of the suit between four to eight years and were at all material times within the applicant’s possession. The Respondent argued that the central issue in the matter is the extent of each party’s contribution to matrimonial property which has been the subject of the parties’ pleadings since 1st March 2024. Similarly, the handwritten list of expenses was within the applicant’s knowledge and control. There is no credible element of genuine discovery. 1. The Respondent argued that the applicant seeks to introduce his case in piecemeal after witnessing the strength of the opposing case at the hearing. Thus the Respondent submitted that the Applicant has failed to satisfy the conjunctive test for admissible for additional evidence. The Applicant has failed to show that the evidence would probably have an important influence on the result as the bank statements from November 2018 do not address her uncontested evidence regarding the vehicle KCH 689G and the loan from her chama taken in 2018 to rescue it from auction. Further the integrity of the receipts is in doubt as they do not correspond in material particulars and are not supported by any corresponding bank transfers, M-pesa statements or third-party vouching and appear to have been fabricated for the purpose of the instant application. 1. Whilst relying on the case of **Mohammed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR**, the Respondent argued that she has testified and closed her evidence therefore she will not have an opportunity to address or challenge the impugned documents at the time of her testimony. She further argued that the court ought to balance between the evidence being in the Applicant’s possession throughout and the case has been pending since 2024 and the fact that she closed her case. The Respondent further argued that should the court be inclined to admit the disputed receipts, it should summon the makers of the said documents for cross examination pursuant to **Section 35 of the Evidence Act**. 2. The Respondent cited **Section 1A and 1B of the Civil Procedure Act** and the cases of **Hunker Trading Company Limited vs Elf Oil Kenya Limited Civil Appl. No. NAI 6 of 2010**; **Patel vs EA Cargo Handling Services Ltd (1974) EA 75** and **Adrian Kamotho Njenga vs Cabinet Secretary** **Ministry of Information, Communication and Technology & 8 Others [2017] eKLR** and submitted that the Application is an abuse of the court process as the matter has been pending since March 2024. Thus to allow the application would further delay the matter that is ready for determination. Further, the respondent cited Section 14(b) of the Matrimonial Property act and argued that the applicant bears the burden of rebutting the said presumption through admissible and credible evidence placed before the court at the appropriate time. **Analysis And Determination** 1. The only issue in the instant Application is whether the Court should permit the Applicant introduce additional evidence post-the trial conference order. 2. The paramount duty of the Court in any dispute is to ensure substantive justice is done, hence the Court possess the discretion to permit additional evidence post-trial conference order or including after all evidence has been called and the case has been closed but the discretion in granting such applications is exercised sparingly to obviate potential prejudice to the opposite Party through a choreographed or tailored introduction of new evidence with a view to sealing weaknesses exposed during the trial. 3. In the case of **Samuel Kiti Lewa vs Housing Finance Co. of Kenya & Another (2015) eKLR**, the Court held as follows: - **The Court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re opening does not embarrass or prejudice the opposite party. In that regard, re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such prayer for re-opening of the case will be defeated by inordinate and unexplained delay.** 1. Similarly in **Susan Wavinya Mutavi vs Isaac Njoroge & Another [2020] eKLR**, the court found that **Courts have held that for a case to be reopened, the applicant must show that there has been new evidence which could not be obtained earlier and that the evidence is crucial to the case’s determination. It is also imperative that reopening would not be prejudicial to any party; that reopening is not intended to fill evidential gaps and the application has not been made inordinately late**. 2. In the **Book Murphy on Evidence, Fourteenth Edition**, at pg. **687-688;** the Author Writes: **“The discretion should not be exercised to aid a careless or an inadvertent party who has simply failed to take trouble to prepare his case adequately. And it would be carelessness or inadvertence to fail to foresee that the other side will bring evidence designed to contradict and disprove one’s case. The test was originally that laid down by Tinda J in Frost, in fairly narrow terms:** **‘The Crown… cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given…but if any matter arises ex improviso which no human ingenuity can foresee…there seems to me no reason why the matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.’** **More recently, it has been felt the test propounded by Tindal CJ is unduly narrow, and ought to be restated to allow the Judge more discretion to further the interests of justice…** **In civil cases, evidence in rebuttal has been permitted in cases where evidence has been given, or issues raised, which could not have been foreseen on the statements of the case and which have accordingly** **taken a party by surprise or where a party has been misled about the true nature of the claim or defence.”** 1. The principles upon which the Court act upon in exercising its discretion in permitting additional evidence may thus be summarized as follows: 2. **Diligence and Control- that is, whether the Applicant has demonstrated reasonable cause for the failure to produce the evidence at the required time was outside their power, possession or control despite due diligence** 3. **Materiality or Relevance- whether the proposed evidence goes to the core issues in controversy rather collateral matter** 4. **Prejudice and timing- the impact on the adverse party considering the stage at which the evidence is proposed to be tendered and whether the opportunity for rebuttal remains; and** 5. **Good faith and substantive justice – whether admitting evidence advances interests of justice taking into account the Applicant’s conduct and ensuring evidence is not intentionally withheld as a tactical salvage measure.** 6. Applying the above principles in the instant case, it is noted that this matter was instituted through Originating Summons on 4th March 2024 at the instance of the Respondent. The Applicant thereafter filed his Replying Affidavit dated 24th June 2024 out of the time granted by the Court for filing of response. On 25th June 2024, Counsel for the Applicant did not oppose the admission into the record of the said Replying affidavit. The matter was thereafter referred to mediation on 22nd July 2024 however the same was not successful and the matter was placed before the court once more on 25th November 2024. 1. The matter was fixed for hearing on 10th February 2025. On the said date the matter did not proceed and it was rescheduled for a hearing on 4th June 2025. The matter came up for hearing on the said date but the applicant was not ready to proceed on account of being unwell. 1. The Court granted an adjournment and the matter was scheduled for hearing on 29th October 2025. On the said date, the matter proceeded with the Respondent testifying. It was then fixed for a further hearing of the Respondent’s two other witnesses on 3rd February 2026. The Respondent’s case is thus not yet closed. She is yet to call two witnesses to testify. 2. Turning to the Applicant, it is apparent that the evidence sought to be introduced was well within the Applicant’s knowledge and/or reach throughout. The documents consist of personal bank statements which he could have applied for earlier if he wanted, cash receipts and personal handwritten notes which were in his possession or control. With reasonable diligence, he could have filed these documents with the previous ones prior to the trial conference. It is further my view that the suit was commenced in the year 2024 and it has been clear all along that the core issue for determination is contribution of both parties in the acquisition of the matrimonial property hence the materiality of such evidence ought to have foreseeable to the Applicant. The Applicant, deposed, as a matter of fact, that he felt the need to bring up these attachments evidence after the Respondent testified, and that is when he discovered their importance. The discretion of the Court to permit additional evidence as aptly put by Murphy in the Book ‘Murphy on Evidence- ‘**should not be exercised to aid a careless or an inadvertent party who has simply failed to take trouble to prepare his case adequately. And it would be carelessness or inadvertence to fail to foresee that the other side will bring evidence designed to contradict and disprove one’s case.’** 1. The evidence that the Applicant wants to introduce is not new or one that he could not have obtained with due diligence. While it is important to uphold the **Article 50 of the Constitution**, it is equally important to scrutinize the conduct of the party seeking its enforcement. Both the Applicant and the Respondent are entitled to its protection, and their respective interests must be carefully balanced on the scales of justice. 2. This Court would not be advancing the interests of justice by encouraging parties who have already been afforded full opportunity for candid disclosure to withhold evidence in their possession or within their reach, only for them seek leave to introduce the same afterwards with a view to remedying conceived defects they feel the trial has exposed. Such practice encourages the mischief that pretrial disclosure was meant to prevent. 3. The upshot is that the Court finds the Application dated 23rd January 2026 devoid of merit and hereby dismisses the same with costs the Respondent. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**