Ngunyi v AirBnb Ireland UC (Civil Case E080 of 2026) [2026] SCC 120 (KLR) (17 June 2026) (Ruling)

Ngunyi v AirBnb Ireland UC (Civil Case E080 of 2026) [2026] SCC 120 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] SCC 120 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Civil Case E080 of 2026 TN Mwangeka, RM June 17, 2026 Between Elvis Ngunyi Claimant and AirBnb Ireland UC Respondent Ruling 1.This ruling relates to a Notice of Motion filed by the Respondent dated 4th June 2026 to arrest the pending judgment herein and that the court allows the parties to file additional documents restricted to the issues raised in regards the investigation report dated 12th May 2026. The application is grounded on among other facts, that the Respondent serves over 220 countries and regions worldwide on its platform which lists millions of unique properties and operates in diverse regulatory environments. That through its Advocate here in Kenya, they commissioned for investigations to be conducted but the said investigations prolonged and the report only came out on 12th May 2026. The Respondent seeks to have the report presented to court as part of its evidence before the determination of the suit herein as a confirmation of the issues raised in its defence. 2.The application is opposed by the Claimant. Per the Claimant, the alleged report does not constitute newly discovered evidence and could, with reasonable diligence, have been obtained and produced long before the hearing and close of the Respondent's case. Further, the Application is an attempt to reopen the proceedings after conclusion of the hearing and is intended solely to fill evidentiary gaps in the Respondent's defence. 3.Section 3 and 43 of the Small Claims Court Act upon which the present application is 4.grounded are to the effect that the court in exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution. The Court shall adopt such procedures as the Court deems appropriate to ensure— (a) the timely disposal of all proceedings before the Court using the least expensive method; (b) equal opportunity to access judicial services under this Act; (c) fairness of process; and (d) simplicity of procedure. Further, the Court may on the application of any party to the proceedings set aside any of its orders and make such further orders as it thinks just. 5.Having considered the application, the response thereto, the submissions, and the applicable law, I find that the core issue for determination is whether the court ought to grant the Respondent leave to file additional documents in support of their case at this juncture. 6.In Nicholas Kiptoo Arap Korir Salat v IEBC (2013) the Supreme Court held that Article 159(2)(d) is not a rescue boat for a negligent litigant who sat on their evidence until the eleventh hour. 7.Elsewhere, in the case of Susan Wavinya Mutavi versus Isaac Njoroge & Another [2020] eKLR the court while identifying the principles that guides exercise of discretionary jurisdiction stated as follows:“Over the years, Kenya’s superior courts and courts in the Commonwealth have developed principles which guide the exercise of jurisdiction to re-open a case and receive additional evidence in a civil trial court. First, the jurisdiction is a discretionary one and is to be exercised judiciously. In exercising that discretion, the court is duty-bound to ensure that the proposed re-opening of a party’s case does not embarrass or prejudice the opposite party. Second, where the proposed re-opening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. Third, the plea for re-opening of a case will be rejected if there is inordinate and unexplained delay on part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Fifth, the evidence must be such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible.” 8.Further in Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] KEHC 3930 (KLR) the court elucidated thus; “If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.” 9.Presently, on 5th June 2026, the court delivered its ruling on a previous application and set the matter for hearing on 13th May 2026. However, the Applicant’s advocate proposed to proceed via section 30 of the Small Claims Court Act which was agreeable to the Respondent/Claimant. The Applicant did not mention that it had been given instructions by its client to persue investigations and that the same were ongoing and would therefore request for time to file the said report once availed. As at 5th June 2026, the parties were satisfied with the quality and nature of their pleadings enough to have the court render judgment based on them. 10.Further, the invocation of Article 159(2)(d) by the Applicant cannot be used as a scapegoat to excuse lateness of filing. Rules governing the close of pleadings and timelines for sharing evidence are structural safeguards of a fair trial. They are not mere technicalities that can be brushed aside at the Applicant's convenience. Under Article 159(2)(b), justice must be administered without delay. The court cannot stop the wheels of justice on the eve of judgment to accommodate a litigant who suddenly woke up. Client-advocate miscommunication or delayed instructions is a internal matter between the Respondent and their lawyer; it cannot be used to derail the court or prejudice the Claimant. 11.Be that as it may, this court has gone through the replying affidavit filed in opposition to the Application and noted that the same introduces new facts and evidence that do not constitute part of the Statement of Claim and List of Documents in support thereof. The deponent has relied on various emails that raise new considerations. The court further notes that the parties herein seem to file documents in piecemeal. To allow the reopening of the case and introduction of new or further evidence would not be proper use of judicial discretion. 12.As such, this court finds that what is proper is for the parties to revert to status quo ante which is for this court to render its judgment based on the documents filed as at 5th June 2026, which this court shall proceed to do after delivering this ruling. 13.Ultimately, the Notice of Motion dated 4th June 2026 is disallowed with costs of Kshs. 10,000/-to the Respondent/Claimant. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 17TH DAY OF JUNE 2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;Mr. Kawamara…. for Claimant;Ms. Kariuki Owesi h/b for Othero for Respondent C/A EstherSigned By/for:HON. THERESA N. MWANGEKA