https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/395

Muteti v Mutua & another (Civil Case E126 of 2022) [2026] KEMC 395 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEMC 395 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E126 of 2022 YA Shikanda, SPM July 28, 2026 Between Patrick Musembi Muteti Applicant and Paul Kisolo Mutua 1st Respondent Cyrus Nzai 2nd Respondent Ruling The Application 1.The application for determination is dated 6/1/2026 brought by the plaintiff pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act. The application seeks the following orders: 1.That this Honourable court be pleased to grant leave to the plaintiff to file an additional witness statement, specifically the eye witness statement out of time; 2.That the attached further list of witnesses and witness statement be deemed as duly filed upon payment of the requisite fees; 3.That the costs of this application be in the cause. 2.The application is supported by an affidavit sworn by Counsel for the plaintiff and is premised on the following grounds:i.The plaintiff/applicant honestly believed that the eye witness statement had been filed;ii.It was later discovered that the statement had not been filed;iii.The omission was not deliberate;iv.The statement is material to the plaintiff’s case;v.No prejudice will be occasioned to the defendants if the application is allowed;vi.The application is made without undue delay. 3.In the affidavit in support of the application, counsel for the plaintiff reiterated the grounds in support of the application and deposed that it is in the interest of justice and fairness that the application be allowed. The Defendants’ Response 4.The defendants opposed the application by filing a Replying affidavit sworn by counsel for the defendants. Counsel deposed that Order 11 of the Civil Procedure Rules provides for case management that deals with pre-trial stages. That the respondents will be prejudiced since a witness has already testified on behalf of the plaintiff. Counsel further deposed that the application was an afterthought meant to cover the deficiencies that arose in the plaintiff’s case at the hearing. That allowing the application would prolong the hearing and thereby defeat the overriding objective, which is a speedy trial. The defendants alleged that the application was filed outside the 14 day period that was granted by the court. That the applicant’s conduct demonstrates indolence, rather than excusable mistake. It was deposed that the court’s discretion to allow the application should be based on sufficient reasons being given and not to cure a party’s weak case or introduce new dilatory evidence, as in this case. Main Issues or Questions for Determination 5.Having perused the application as well as the response by the defendants, I find that the main issues or questions for determination are as follows:i.Whether there are sufficient grounds to warrant extension of time for the plaintiff to file an additional witness statement;ii.What orders should the court make with respect to costs of the application? The Plaintiff’s Submissions 6.The parties agreed to dispose of the application by way of written submissions. The plaintiff filed written submissions. The plaintiff submitted that excusable mistakes are inevitable in the ordinary course of litigation, and that such errors should not be permitted to overshadow the imperative of determining matters on their merits as opposed to undue reliance on procedural technicalities. The plaintiff further submitted that an inadvertent failure to comply with Order 11 of the Civil Procedure Rules ought not to be a sufficient ground to deny the Plaintiff/Applicant a fair hearing. That the ends of justice can only be met when all relevant evidence has been tabled before this Honourable court. Further, the inclusion of a key witness in the case only aids the court in reaching a just determination of the case. 7.The plaintiff argued that the mistake of his Advocate should not be visited upon him. The plaintiff relied on the following authorities:a.Langat & another v Muchai [2022] KEHC 3117 (KLR);b.Njoroge v Kimani [2022] KECA 1188 (KLR);c.Nkorui v Meru South Farmers Co-operative Society Limited [2024] KEELRC 781 (KLR). Submissions by the Defendants 8.The defendants also filed written submissions. They relied on their Replying affidavit and further submitted that pre-trial directions were taken in 2023 and Counsel for the plaintiff confirmed that they had fully complied. The defendants maintained that the application was an afterthought, would prejudice the defence and cause unnecessary delays. The defendants urged the court to dismiss the application with costs. Analysis and Determination The Legal Provisions 9.Section 1A of the Civil Procedure Act provides as follows:“(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court".Section 1B provides thus:“(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology".Section 3A provides:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".Article 159(2) (b) of the Constitution provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that justice shall not be delayed.Order 3 rule 2 of the Civil Procedure Rules provides:“All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by—(a)the affidavit referred to under Order 4 rule1(2);(b)a list of witnesses to be called at the trial;(c)written statements signed by the witnesses excluding expert witnesses; and(d)copies of documents to be relied on at the trial including a demand letter before action:Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under Order 11.” (Emphasis supplied)Order 50 rule 6 of the Civil Procedure Rules provides that:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” Analysis 10.I have carefully considered the application as well as the defendants’ response. I have further taken into consideration the submissions by the parties and the applicable law. In view of the foregoing, it is my view that notwithstanding the time limit provided by Order 3 rule 2 of the Civil Procedure Rules on filing of witness statements accompanying a plaint, the court has jurisdiction to extend filing of such statements. In the case of Smith v Middleton [1972] SC 30, it was held that discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. It is my opinion that in exercising that discretion the court should ensure that allowing the application does not embarrass or prejudice the opposite party. 11.In that regard, additional evidence should not be allowed where it is intended to fill gaps in evidence. Further, such prayer for additional evidence will be defeated by inordinate and unexplained delay. In the case of Hashi Shirwa v Swalahudin Mohamed Ahmed [2011]eKLR, the court observed that re-opening a case is not an impossibility but there must be cogent reasons for re-opening and not because a party has suddenly had a brain wave and spotted a loophole in its case, which it can now seal by re-opening the case. While declining a similar application, the court held as follows:“A court has a duty to ensure parties are fair to each other and not conduct trial by ambush. The role of the court in this shroud of mystery is to be an impartial umpire ensuring that there is no rough tackle and offside play. Litigants are not in a game of chess where for every move made, there must be a counter move and re-introduction of a checkmate. If the court allowed that, litigation would never end." 12.Although the above authority relates to the issue of reopening a case, my opinion is that the same reasoning would apply in the circumstances of the instant application. Allowing additional evidence is an indulgence requested from the court by a party in default. He is not entitled to the indulgence. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application will be exercised judiciously in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant to provide the court with a full, honest and acceptable explanation of the reasons for failure to avail the evidence sought to be adduced. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant. 13.The plaintiff seeks an equitable remedy. It is the kind of prayer that calls upon the court to exercise its discretion. I have perused the record. The suit herein was filed on 29/8/2022. A list of witnesses was attached to the plaint and the only witness named thereon was the plaintiff. Paragraph 2 merely states, “Any other witness with the leave of court.” This implies that as at the time of filing the suit, no other witness had been contemplated. Two witnesses have since testified, with the plaintiff having been stood down. The record indicates that directions were taken on 5/6/2023 whereupon the plaintiff’s counsel indicated that they had complied and were ready to take a hearing date. The plaintiff did not indicate that there would be an additional witness. 14.The issue of the additional witness was raised for the first time on 8/12/2025. That is after a period of over three years from the time the suit was filed. Ordinarily, such an application ought to be made at least 15 days prior to the date for pre-trial conference. There has been inordinate delay in filing the application. In the case of Argan Wekesa Okumu v Dima college Limited & 2 Others [2015] eKLR, Mabeya J held that when delay has been established, unless it is well explained, it becomes inexcusable. Counsel for the plaintiff deposed that the plaintiff intended to file an eyewitness statement in support of the case and honestly believed that the same had already been filed. That upon reviewing the court records, counsel discovered that the statement had inadvertently not been filed. Counsel further deposed that failure to file the statement was not deliberate and arose from an honest mistake. 15.I have a problem with the fact that counsel opted to swear an affidavit and speak on behalf of the plaintiff. Order 19 rule 3(1) of the Civil Procedure Rules provides as follows:“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof". 16.In the case of Gerphas Alphonse Odhiambo v Felix Adiego [2006] eKLR, Waki JA ( as he then was) held as follows:“An affidavit, by definition, is evidence given on oath and is subject to the provisions of the Evidence Act, Cap 80 – see section 2(2). Admissibility of hearsay evidence must therefore be shown to comply with the provisions of that Act. Ordinarily, an affidavit should not be sworn by an advocate on behalf of his client or clerk when those persons are available to swear and prove the facts of their own knowledge. In appropriate cases such affidavits may be struck out or given little or no weight at all. Even where exception is made to section 2(2) of the Evidence Act, as it is in interlocutory proceedings under the Civil Procedure Rules, Order 18 rule 3(1) (now Order 19), the need to ensure that facts are proved by a person or persons who have personal knowledge of such facts is closely guarded. This Court interpreted that provision in Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate) [1986] KLR 705 where it stated:“Order XVIII rule 3(1)(now Order 19) of the Civil Procedure Rules is not to be understood to provide that an affidavit in interlocutory proceedings may be sworn by a deponent who is unable of his own knowledge to prove facts, or that such an affidavit may be confined entirely to statements of information and belief even if the sources and grounds are shown. The words “may contain” suggest that the main body of such an affidavit has to be confined to facts which the deponent is able of his own knowledge to prove.” (Emphasis supplied) 17.It is not the duty of counsel to make available witnesses in support of his client’s case. Counsel cannot depose that the plaintiff intended to file a witness statement and believed that the same had been filed, yet the plaintiff knows very well that no such witness recorded a statement at the Advocate’s office. Furthermore, it would not be proper for counsel to depose to what the plaintiff intended and believed. That is a fact to be deposed to by the plaintiff himself. My view is that the plaintiff and his counsel are not being candid. There is absolutely no basis upon which the court may infer that the witness statement may have been inadvertently left out. It is clear to me that the witness sought to be introduced was not in the picture for a period of three years. 18.I say so because the witness was not mentioned on the list of witnesses. Secondly, the witness statement sought to be filed was signed and dated by the witness on 6/1/2026. This shows that the witness statement was never in existence. It cannot therefore be said that it was inadvertently omitted. The situation would have been different if the person sought to be called was listed in 2022 when the suit was filed and that the witness statement was also available, save that it was not filed. This is a clear case of introducing new evidence after over three years as opposed to inadvertent failure to file a witness statement. It is not clear what counsel for the plaintiff is referring to as an honest mistake on his part. Was the witness taken to his chambers but he failed to record her statement? Was the witness mentioned by the plaintiff but counsel failed to follow up? 19.In my view, it is not for the court to imagine what the honest mistake could have been. If a party alleges that there is an excusable mistake, such party must, in my view, be able to point out the specific mistake or error that he seeks to be excused from. The witness statement sought to be introduced indicates that the proposed witness is the mother to the plaintiff. The plaintiff mentioned in his statement that he was called by his mother and informed of what had happened. I find it strange that the plaintiff would intend and believe that his own mother recorded a statement yet there is no allegation that the mother visited the Advocate’s offices for purposes of recording a statement. How would the plaintiff fail to know whether or not his mother recorded a statement in a matter initiated by the plaintiff himself? Why would it take over three years for the plaintiff to discover that his mother did not record a statement? I do not find any plausible reasons to explain the delay. Intention and belief does not explain the delay. 20.Section 1A of the Civil Procedure Act provides that the overriding objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act and that the Court shall, in the exercise of its powers under the Act or the interpretation of any of its provisions, seek to give effect to the overriding objective. It is also provided that a party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. Section 1B of the Civil Procedure Act enjoins the court to ensure timely disposal of proceedings, among other things. The plaintiff has, without reasonable cause or excuse, failed to assist the court to further the overriding objective of the Act. 21.My view is that a party in default cannot claim as of right, but must earn the court's succour. The same applies to the overriding objective captured under sections 1A and 1B of the Civil Procedure Act. A party who decides to sit on their rights and delay or derail the due process cannot hide under the guise of "procedural technicality". Expeditious disposal of disputes is key to all cases and is fundamental to the administration of justice. It is a component of substantive justice as opposed to mere procedural technicalities. I would borrow the words of the Court of Appeal in the case of John Ongeri Mariaria & 2 Others v Paul Mutundura [2004] 2 EA 163, wherein the Court observed quite authoritatively that:“Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work must fall on their shoulders ….whereas it is true that the court has unfettered discretion, like all judicial discretions, must be exercised upon reason not capriciously or sympathy alone……justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.” 22.In the case of Aggrey O. Obare V Telkom Kenya Limited [2011] KEHC 2161 (KLR), Kimaru J (as he then was) had this to say on the issue of delay:“In the present application, although the proceedings were ready on 30th August 2010, (within the period in which the applicant would have lodged the appeal) the applicant did not present the present application to this court until three months later i.e. on 1st December 2010. The applicant did not give a cogent reason for this delay. It is clear that the applicant was indolent. He is guilty of laches. This court cannot exercise its discretion in favour of such indolent litigant. The justice of this case demands that this court declines to exercise its discretion in favour of the applicant”. 23.In the case of Abigael Barmao v Mwangi Theuri [2013] KEELC 78 (KLR), Munyao Sila J (as he then was) held:“My view of this application is that the plaintiff has been guilty of laches. If a proper explanation had been provided as to why there has been a delay of more than 4 years, then probably I would have been moved to grant the injunction. But no explanation has been given, and I can only conclude that the plaintiff is guilty of delay. There is no doubt that 4 years before seeking relief is a period that is inordinately too long. I therefore decline to grant the injunction sought but make no orders as to costs. I direct the plaintiff to set down the suit for hearing and the matter to be determined on merits”. 24.The remedy sought by the plaintiff is founded in equity and one of the maxims of equity is that "delay defeats equity". In Snell's Equity, 30th Edition at p 33 para 3-16 (quoting Lord Camden L.C in Smith v Clay (1767) 3 Bro. C.C. 639n. at 640n) it is asserted that a court of equity:“has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing." 25.The plaintiff herein is guilty of laches. He has not even explained why he could not move the court in good time. It is not even clear when the plaintiff or his counsel discovered that the plaintiff’s mother had not recorded a statement. In the authority of Karura Investments Limited v Magugu & 3 others [2023] KEELC 16849 (KLR), the court observed:“From the record, I am satisfied that the 1st defendant was given ample opportunity to file statements of the witnesses that she wished to call in her defence in this matter……………….The 1st defendant has not explained why she did not file the witness statements she now seeks to file following the leave that she was granted earlier. In the absence of such an explanation, there is no basis upon which the court can exercise its discretion in favour of the 1st defendant. I have also noted that the 1st defendant has not annexed to her application copies of the additional witness statements that she wishes to file. The court is in the circumstances unable to appreciate the importance of the proposed witnesses to the 1st defendant’s case. The court is also unable to determine whether the introduction of the said witnesses at this stage would be prejudicial to the plaintiff which has already closed its case.” 26.In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court of Kenya held as follows:“Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigant's legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined............. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it". 27.The Supreme Court, in the above case, laid down the following underlying principles that a court should consider when exercising its discretion to extend time:1.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3.Whether the court should exercise the discretion to extend time is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5.Whether there will be any prejudice suffered by the respondent if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases like election petitions, public interest should be a consideration for extending time. 28.Given the circumstances of this case, the plaintiff does not meet the threshold that would warrant the court to grant him an extension of time to file a witness statement. I have already pointed out that no good reasons have been given to warrant to explain the delay. My understanding of sections 1A, 1B and 3A of the Civil Procedure Act is that the provisions cannot be invoked as a matter of course so as to excuse all and any kind of failing on the part of a party to abide by the requirements of the rules. In my view, the overriding objective was brought to ensure that justice is served to both parties and further, where there is a conflict of the Oxygen Rules Principles with the substantive law, the law ought to be interpreted in such a manner that will ensure the administration of justice. I find nothing in the overriding objective to suggest that the delay herein, which has not been sufficiently explained can be excused. 29.Delay is an anathema to a fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in Article 159 that requires justice to be administered without delay, to allow a party to bring their action after inordinate delay, without any justifiable reason. The application is clearly an afterthought. Our system of justice is adversarial in nature. The court should not be used to aid an indolent party under the tag of “interest of justice”. I think I have said enough to show that the application is untenable. The conduct of the plaintiff as explained above defeats the prayers sought. The plaintiff cannot go into slumber then wake up and expect the court to assist him without even explaining why he was asleep all that time. Disposition 30.Consequently, I find that the application dated 6/1/2026 is devoid of merit. I proceed to dismiss it with costs to the defendants. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 28TH DAY OF JULY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.