https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3870

Pavedar Ltd v Matheri & 4 others (Environment and Land Case 138 of 2021) [2026] KEELC 3870 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3870 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case 138 of 2021 LL Naikuni, J June 16, 2026 Between Pavedar Limited Plaintiff and Stephen Chege Matheri 1st Defendant Dorcas Wanjiku Chege 2nd Defendant Land Registrar Kwale District 3rd Defendant and Kwale Cement Factory Limited 1st Interested Party African Banking Corporation Limited 2nd Interested Party Ruling I. Introduction 1.This Honourable Court is tasked to make a determination on the Notice of Motion application dated 6th March 2026 filed by African Banking Corporation Limited, the 2nd Interested Party herein. The application sought for leave to file a Supplementary List and Bundle of Documents in support of its interest as Chargee of the suit property. 2.Upon service of the respective application, the Respondents through a Replying Affidavit dated 13th March, 2026 sworn by Dorcas Wanjiku Chege, the 2nd Defendant herein, opposed the said application on grounds that it is misconceived, incompetent, and amounts to reopening the Plaintiff’s case through a proxy litigant. II. The 2nd Interested Party/Applicant’s case 3.The 2nd Interested Party/Applicant’s application was brought under the provisions of Articles 50 (1) and 159 of the Constitution of Kenya, 2010 under the provision of Sections 1A and 1B, 3 & 3A of the Civil Procedure Act, Cap. 21, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the Law. 4.The Applicant sought for the following orders: -a.That the Honourable Court do grant the 2nd Interested Party leave to file Supplementary and List and Bundle of Documents.b.That the annexed Supplementary and List and Bundle of Documents be deemed as duly filed upon payment of the requisite court fees.c.That costs of this Application be in the cause. 5.The application by the 2nd Interested Party/Applicant herein was premised on the grounds, testimonial facts and averments made out under the 12 Paragraphed Supporting Affidavit of KAJUJU MARETE who averred as follows that:-a.He was the Legal Manager of African Banking Corporation Limited, sworn and dated the same day with the application.b.On 16th February 2026, the Learned Counsel for the 2nd Interested Party made an oral application to introduce a supplementary list and bundle of documents, which the Court allowed but directed that a formal application be filed to enable parties to peruse the documents before they could be formally placed on record.c.The intended documents were critical and essential for the purpose of determining the real question in controversy between the parties, particularly in relation to the Bank’s statutory power of sale over the suit property.d.The said documents would enable this Honourable Court to render a just and fair decision upon considering all necessary evidence provided by the parties.e.No prejudice would be occasioned to the Plaintiff or Defendants if the leave sought was granted, as they shall have an opportunity to peruse the documents and respond accordingly. On the contrary, failure to admit the said documents would greatly prejudice the 2nd Interested Party by denying it an opportunity to fully present its case.f.The Affiant emphasized that the documents were not introducing a new cause of action but merely clarify and support matters already pleaded, directly relating to the suit property and the transactions in Issue.g.The delay in filing the documents earlier was neither deliberate nor intended to overreach the other parties, but arose from inadvertence and subsequent retrieval of archived records. The Applicant acted promptly upon discovering the existence of the documents and filed the present application without undue delay.h.In conclusion, that this Honourable Court had unfettered discretion under the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Article 159 of the Constitution of Kenya, 2010 to allow the filing of additional documents at any stage of proceedings where necessary for the just determination of the case, and that it was in the interest of justice and fair hearing that the orders sought be granted.i.Finally, it was in the interest of justice and fair hearing that the 2nd Interested Party be granted leave to file and rely upon the Supplementary List and Bundle of Documents. III. The Response to the Application by the 2nd Defendant/Respondent 6.The 2nd Defendant/Respondent opposed the Notice of Motion application dated 6th March, 2026 through an 18 Paragraphed Replying Affidavit sworn on 13th March, 2026 by DORCAS WANJIKU, the 2nd Defendant herein. She averred that:-a.She had read the said application together with the Supporting Affidavit and the annexures therein and believed the same to be misconceived, incompetent and a gross abuse of the Court process.b.The matter was part heard whereby both the Plaintiff, 1st and 2nd Defendants had already testified and formally closed their cases.c.The 2nd Interested Party then sought leave of this Honourable Court to introduce a List of Documents and file additional evidence after the close of both the Plaintiff’s, 1st and 2nd Defendants’ cases.d.The said application was a deliberate attempt by the 2nd Interested Party to fill the glaring evidentiary gaps in the Plaintiff’s case which became apparent during the hearing.e.It was evidently clear the 2nd Interested Party was acting on instructions of the Plaintiff so as to salvage the Plaintiff’s case.f.The 2nd Interested Party had been joined in these proceedings only for the limited purpose of protecting its alleged interest arising from a charge over the suit property and not to prosecute or supplement the Plaintiff’s claim.g.The role of an Interested Party in proceedings was limited and did not extend to introducing new evidence or advancing the case of a principal litigant.h.Allowing the 2nd Interested Party to introduce documents at that stage would effectively re - open the Plaintiff’s case through a proxy litigant and allow the 2nd Interested Party to fill in the gaps and omissions which the Plaintiff had not produced during his case.i.Allowing the 2nd Interested Party to file additional documents at that stage would effectively reopen the Plaintiff’s case through the back door and unfairly prejudice the 1st and 2nd Defendants in the following ways:-i.Deprive the 2nd Defendant of the opportunity to properly challenge the new documents due to her advanced age and health challenges, further compounded by the demise of the 1st Defendant during the pendency of proceedings.ii.Amount to re - opening both the Plaintiff’s and Defendants’ cases and cause a gross miscarriage of justice by recalling the 2nd Defendant to testify again, taking into account her age and the age of the case which had been adjourned on numerous occasions at the instance of the Plaintiff.iii.Alter the evidentiary landscape after the Plaintiff and Defendants had closed their cases.iv.Unfairly strengthen the Plaintiff’s claim through a non‑principal party.v.Introduce new Issues not in the pleadings of the principal litigants, namely the loan facility, the charge and the exercise of statutory power of sale.vi.Prejudice the Defendants and violate the orderly conduct of trial, infringing on their rights to fair trial.vii.Allow the Plaintiff, through the 2nd Interested Party, a second chance to actively prosecute and reopen his case indirectly with the sole intention of advancing his evidence.a.The 2nd Interested Party had ample opportunity to file any documents it intended to rely on before and during pre‑trial compliance as required under the Civil Procedure Rules, 2010.b.All the documents the 2nd Interested Party intended to file then were documents already filed by the Plaintiff, with a few additions sneaked in to camouflage their true purpose, but in reality they were documents meant to be produced by the Plaintiff and not the Interested Party, such as items No. 4, 5, 6, 7, 8, 9 and 10.c.The 2nd Interested Party had not provided any reasonable explanation for the inordinate delay in making the said application and the only conclusion was that it was not an inadvertent mistake but meant to cover up omissions in the Plaintiff’s case.d.The Affiant deponed that the documents the 2nd Interested Party sought to introduce related to matters concerning loan facilities, charges and alleged statutory power of sale, which Issues were not part of the Plaintiff’s pleaded case and would unnecessarily expand the scope of the dispute before this Honourable Court.e.The role of an Interested Party did not include introducing new evidence and its role arose only because the property was charged to secure a loan. Therefore, its interest was secondary and derivative of the alleged registered proprietor.f.Litigation must come to an end and parties should not be allowed to use proxies and non‑principal litigants to reconstruct and resuscitate their cases after realizing weaknesses exposed during cross‑examination.g.The application by the 2nd Interested Party was therefore misconceived, procedurally improper and an abuse of the court process.h.It was in the interest of justice that the 2nd Interested Party’s application be dismissed with costs.i.The Affiant deponed that what was set out herein was true to the best of her knowledge, information and belief. I. The Replying Affidavit by the Plaintiff/Respondent 7.The Plaintiff/Respondent responded to the Notice of Motion application dated 6th March, 2026 through a 16 paragraphed Replying Affidavit sworn by Mumbi Ngethe Waweru, the sole director of the Plaintiff herein on 11th June, 2026 wherein the Affiant deponed as follows:-a.He had taken time to carefully read the Notice of Motion Application dated 6th March, 2026 and the Supporting Affidavit sworn by M/s Kajuju Marete, and swore the affidavit in support of the said Application.b.The 2nd Interested Party sought to introduce a bundle comprising highly relevant records, specifically:i.A 90 days’ statutory notice dated 7th July, 2017;ii.A 40 days’ Notice to Sell dated 6th December, 2017;iii.A Letter of Offer to Pavedar dated 23rd December, 2020;iv.Stamp Duty KRA payment receipts dated 12th May, 2021 and cheque dated 12th May, 2021 for a sum of Kenya Shillings One Million (Kshs. 1, 000, 000/=);v.Stamp Duty payment of a sum of Kenya Shillings One Seventy Five Thousand Five Sixty Hundred (Kshs. 175,560/=) dated 14th July, 2022 in respect of the debenture;vi.ITAX KRA payment receipt of 14th July, 2022 in respect of the debenture;vii.Form CR25 on the registration of a debenture;viii.A Certificate dated 15th July, 2022 for Registration of a Further Debenture;ix.Pavedar Limited certified USD Loan Account Statements; andx.Kwale Cement Factory Limited certified KES Loan Statement.c.The Affiant stated that he had additionally read the Replying Affidavit sworn by the 2nd Defendant/Respondent, Dorcas Wanjiku, sworn on 13th March, 2026, and was in a position to provide the Honourable Court with a factual rebuttal of the assertions contained therein.d.He had been advised by the Plaintiff’s advocates on record, MW & Company Advocates LLP, whose advice he believed to be true and accurate, that the 2nd Interested Party had satisfied the requisite legal threshold to warrant the grant of the orders sought.e.The Plaintiff entirely supported the Application and explicitly stated that no prejudice would be occasioned to the Plaintiff by the introduction of these documents, and therefore did not object to their introduction.f.The documents sought to be introduced were critical and very essential for the purpose of determining the real question in controversy between the parties.g.The Plaintiff was in complete agreement with the 2nd Interested Party that these documents did not in any way introduce a new cause of action; rather, they merely clarified and supported matters already pleaded before the Court.h.The Honourable Court possessed unfettered discretion to allow the filing of additional documents at any stage of proceedings where it was necessary for the just determination of the case, in line with the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Articles 50 and 159 of the Constitution of Kenya, 2010.i.He had been advised by the Plaintiff’s advocates on record, MW & Company Advocates LLP, that in determining whether to admit such documents, the Court was guided by a three‑pronged test: the relevance of the documents to the dispute, whether the documents had been admitted without undue delay, and the possible prejudice that the Defendant might suffer (and whether such prejudice could be remedied).j.With respect to relevance, the documents sought to be introduced were directly linked to the exercise of the 2nd Interested Party’s statutory power of sale.k.With respect to admission without undue delay, the 2nd Interested Party had candidly explained that the omission arose from inadvertence and the subsequent retrieval of archived records.l.With respect to prejudice, any prejudice that the Defendants might suffer would not amount to irreversible harm if the leave sought was granted. Any perceived prejudice could be fully remedied by allowing them the opportunity to peruse the documents and file a response or supplementary documentation as they deemed fit.m.It was strictly in the interest of justice and the right to a fair hearing that the 2nd Interested Party be granted leave to file and rely upon the Supplementary List and Bundle of Documents.n.Admitting these documents would empower the Honourable Court to render a just and fair decision upon considering all the necessary evidence provided by the parties.o.The Affiant stated that all that was deponed to herein was true to the best of his knowledge, information, and belief. V. Submissions 8.On 16th March, 2026, while all the parties were present in Court, they were directed to have the Notice of Motion application dated 6th March, 2026 be disposed of by way of written submissions. Pursuant to that, some of the parties compiled accordingly. 9.Subsequently, a ruling date was reserved for 16th June, 2026. Eventually, it was delivered on 18th June, 2026 thereof. A. The Written Submissions by the Plaintiff/Respondent 10.The Plaintiff through the Law firm of Messrs.MW & Company Advocates LLP filed their written submissions dated 12th June, 2026. Mr. Wairoto Advocate submitted that the 2nd Interested Party approached this Honourable Court vide a Notice of Motion Application dated 6th March 2026 seeking to adduce additional documentary evidence. The documents in question; which include statutory notices, Kenya Revenue Authority (KRA) receipts, and certified loan statements; relate directly to the exercise of the 2nd Interested Party’s statutory power of sale over the Suit Property. 11.According to the Learned Counsel, the Applicant had candidly explained that the delay in filing these records prior to the close of the hearing of the Suit was due to inadvertence and the administrative process of retrieving archived files.The 2nd Defendant vehemently opposed the Application via a Replying Affidavit dated the 13th March, 2026. She contended that because the Plaintiff and the Defendants had formally closed their cases, the Application was an abuse of the court process designed to fill glaring weaknesses exposed during cross-examination.The Plaintiff filed a Replying Affidavit dated 11th June, 2026 in support of the Application, maintaining that the documents are primary, statutory, and commercial records that clarify pleaded matters.The court on the 16th March, 2026 directed that parties file their submissions and a ruling shall be delivered on the 16th June, 2026. 12.The Learned Counsel relied on the following Issues for determination by this Honourable Court:- a. Whether the 2nd Interested Parties’ Application is merited. 13.On whether the Application is merited. The Learned Counsel submitted that this Honourable Court is clothed with unfettered discretion to admit evidence at any stage of the proceedings, provided such evidence aids in determining the substantive truth of the matter.This discretion is anchored in the overriding objective articulated in Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010 which mandates the Court to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. 14.The Learned Counsel humbly submitted that whereas the provision of Order 3 Rule 2 of the Civil Procedure Rules, 2010 required parties to file documents they wish to rely on 15 days before Pre - trial conference was conducted under Order 11 of the Civil Procedure Rules, this court notes that after close of pleadings a party may only file additional documents with the leave of the court. This was also with discretion of the court which should be applied judiciously. 15.Further according to the Learned Counsel, the Court had power to enlarge such time upon such terms (if any) as the justice of the case may require. In the case of “Jirongo – Versus - Soy Developers Limited & 9 others (Petition 38 of 2019)[2020] KESC 38 (KLR) (4th August 2020) (Ruling)” the Supreme Court enumerated the principles in which leave may be granted for the admission of additional evidence as follows:-“The principles as developed in that case are that; (a) the additional evidence must be directly relevant to the matter before the court and be in the interest of justice; (b). it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; (c. )it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; (d). Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main Issue in the suit; (e). the evidence must be credible in the sense that it is capable of belief; (f). the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; (g). whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; (h). where the additional evidence discloses a strong prima facie case of willful deception of the Court; (i). The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful. (j). A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.(k). The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 16.On the question of reasonable diligence and the reasons for the delay. The Learned Counsel submitted that the 2nd Interested Party had provided a candid and satisfactory explanation. The failure to introduce these records prior to the hearing of the cases was not a deliberate omission but was purely occasioned by inadvertence and the protracted administrative realities of retrieving old, archived files. The Plaintiff asserted that the 2nd Interested Party acted promptly to bring this application upon retrieving the said documents, thereby satisfying the requirement of reasonable diligence.On the question of nexus, relevance, and material influence, of the documents to the dispute in question, the Plaintiff submitted that this limb of the test was fully satisfied.The supplementary documents go to the very core of the controversy, and their admission would undoubtedly have a decisive impact on the just resolution of this case. 17.The environment and land court in the case of:- “Mutwol – Versus - Mutwol & 4 others (Environment & Land Case 37 of 2020) [2024]KEELC 7352 (KLR) (6 November 2024) (Ruling)” had the following to say with respect to this:“[26]..... I will come to answer that question soon after the analysis below of what constitutes relevance. Suffice it to say that in a more strict or higher standard sense as to be admissible, relevance is defined in Article 1 of Stephen's Digest of the Law of Evidence, 12th edn.as: “...any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other."[27]But the clearer and applied definition was given by Lord Simon of Glaisdale in DPP – Versus - Kilbourne [1973] AC 729 at 756, HL. “Evidence is relevant if it is loqically probative or disprobative of some matter which requires proof. I do not pause to analyse what is involved in ‘logical probativeness’ except to note that the term does not of itself express the element of experience which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.” 18.Pursuant to the above dictation, the Learned Counsel humbly submitted that the documents sought to be adduced, which include the 90-day and 40-day statutory notices, KRA stamp duty receipts, Form CR25, and certified bank loan statements, go to the very root of the dispute. They were critical records that establish the validity of the charge and the lawful exercise of the Bank's statutory power of sale over the Suit Property (KWALE/SHIMONI ADJ./280). Without these documents, the Court will be deprived of the complete factual and commercial matrix required to render a fully informed, just, and fair determination. 19.On the critical question of prejudice. The Learned Counsel asserted that the 2nd Defendant's claims that they would suffer undue prejudice are entirely unfounded. The Learned Counsel submitted admitting these documents would occasion no irreversible prejudice, as they do not attempt to sneak in a new cause of action. They simply provide the primary, historical evidence for matters that were already fully pleaded. 20.Furthermore, any perceived procedural inconvenience to the Defendants could be wholly cured by this Court's own procedure, namely, by granting the Defendants adequate time to peruse the documents, file any rebuttal documents if necessary, and address them comprehensively in their final submissions. 21.This was the rationale of the court in the case of:- “Haji & 4 others – Versus - Ngenya & 8 others (Environment & Land Case 34 of 2021) [2023]KEELC 22650 (KLR)(14 November 2023) (Ruling)” where the court held that:“The only limitation to the exercise of this right would be if there was prejudice to be caused to the Defendant in allowing the Plaintiff to file additional witnesses and documents. The Defendant will have the opportunity to cross-examine any additional witnesses she calls, to recall any witnesses who have already given evidence for further cross-examination, and to file any additional statements and documents in response......” (Emphasis added). 22.The Learned Counsel respectfully submitted that the 2nd Interested Party had met the requisite legal threshold for the admission of the Supplementary list and bundle of documents. The documents were highly relevant, their delayed filing had been reasonably explained, and their admission would occasion no prejudice that cannot be cured. To reject them would be to prioritize procedural rigidity over substantive justice. B. The Written Submissions by the 2nd Interested Party/Applicant 23.The 2nd Interested Party through the Law firm of Messrs. Kimani & Michuki Advocates filed their written submissions dated 2nd April, 2026. Mr. Wairoto Advocate submitted that what was before this Honourable Court is the 2nd Interested Party’s application dated 6th March, 2026. It sought leave to file Supplementary and List and Bundle of Documents. The Application was vigorously opposed by the 2nd Defendant through a replying affidavit dated 13th March, 2026. The 2nd Interested Party submits as follows; 24.According to the Learned Counsel on the background of the case, there were two competing titles in this case. One held by the Bank as security for a credit facility and in the name of Kwale Cement Factory Limited and another in the name of Stephen Chege Matheri (deceased) and Dorcas Wanjiku Chege. The Court was being asked to make a determination that would bring light into which of the two titles is valid. For the purpose of determination of this case on merit, on 16th February, 2026, Counsel for the 2nd Interested Party made an oral application to the Court to introduce a supplementary list and bundle of document. The Court granted leave but advised the 2nd Interested Party to file a formal application to enable the parties peruse the documents before they can formally be placed on record. 25.The said documents were filed and they include; 90 days’ statutory notice dated 7th July, 2017. 40 days’ Notice to sell dated 6th December, 2017. Letter of Offer to Pavedar dated 23rd December, 2020. Stamp Duty KRA payment receipt dated 12th May, 2021 & Cheque dated 12th May, 2021 for a sum of Kenya Shillings One million (Kshs. 1, 000, 000/=). Stamp Duty payment slip of Kshs. 175,560 dated 14th July, 2022 for debenture ITAX KRA Payment receipt of 14th July, 2022 in respect of the debenture. Form CR25 on registration of debenture. Certificate dated 15th July, 2022 for Registration of a Further Debenture. Pavedar Limited Certified USD Loan Account Statements. Kwale Cement Factory Limited Certified KES Loan Statement 26.The Learned Counsel submitted that the following two ( 2 ) Issues arise for determination. Firstly, on whether the 2nd Interested Party should be granted leave to file a supplementary list and bundle of document, the Learned Counsel submitted that in cases dealing with root of title, this Honourable court was usually called upon to go over and beyond, test veracity of documents and settle the controversy once and for all. In making such a determination, it would be in the best interest of all parties in the case, that any document that may aid the Court in doing the interrogation be tabled in court, examined and its probative value tested with finality. 27.It is trite law that where a justifiable cause had been shown, the Court retains the discretion to grant leave for the filing of additional statements and documents even after the pre-trial conference had been held and the matter proceeded with to hearing, so long as Judgment was yet to be pronounced in the matter. (see “Kenya Power & Lighting Company Limited – Versus - Spedag Interfreight Kenya Limited (Civil Case 58 of 2017) [2023] KEHC 2052 (KLR) (17 March 2023) (Ruling)”). 28.In the case of “Wadhwa (As Legal Representative of the Estate of Deshpal Omprakash Wadhwa) – Versus - Mohamed & 4 others [2022] KECA 25 (KLR)” the Court was emphatic that;“From the cited law and cases, it is clear that courts have power to allow adduction of additional evidence, even at the appeal stage. The Evidence Act stipulates that the court may in all cases permit recalling of witnesses. It is therefore not too late for the high court and courts of equal status to allow such an application, if in exercise of its discretion it is judicious to do so, even where the case has been concluded but before judgment.” 29.The nature of documents filed were critical for fair and just determination of this dispute. No prejudice would be occasioned to the Plaintiff who has actually not objected to their introduction and neither to the 2nd Defendant if the leave sought was granted, as they shall have an opportunity to peruse the documents and, if necessary, respond accordingly. On the contrary, failure to admit the said documents would greatly prejudice the 2nd Interested Party as it would be denied an opportunity to fully present its case. The documents were not in any way introducing a new cause of action but merely clarify and support matters already pleaded. They directly relate to the suit property and the transactions in the matter and particularly concerning the exercise of the Bank’s statutory power of sale. 30.The Application had been filed with utmost good faith and not intended to delay the matter. The delay in filing the said documents earlier was neither deliberate nor intended to overreach the other parties but arose from inadvertence and the subsequent retrieval of archived records. The documents include bank records, statutory notices, stamp duty receipts, the Letter of Offer dated 23rd December, 2020, debenture registration documents, and certified loan account statements, which records were ordinarily held in the Bank’s central archival system. Courts had consistently held that inadvertent delay did not disentitle a party from relief, particularly where the party has acted promptly upon discovery. 31.The 2nd Interested Party had acted promptly upon discovering the existence of the said documents and has brought the present application without undue delay. This Honourable Court had unfettered discretion to allow the filing of additional documents at any stage of proceedings where it is necessary for the just determination of the case, in line with the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Article 159 of the Constitution of Kenya, 2010. 32.In opposing the said Application, the 2nd Defendant’s only argument was that they were intended to seal gaps in the Plaintiff’s case. Other than that mere allegation, there was no evidence to demonstrate which gaps was being intended to be filled on behalf of the Plaintiff. Additionally, when deciding on root of title, every document that may assist the Court determine the legitimate title becomes relevant and ought not to be blocked in the interest of justice. By introducing the said documents, the 2nd Interested Party was not aiding any party, but rather assisting the Court to settle the controversy in question. 33.The 2nd Defendant further argued that the documents would necessitate re - opening of the case. It was vital to note that the provision of Section 146 (4) of the Evidence Act, Cap. 80 allowed for recalling of witnesses by providing as follows:-The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively. 34.The law contemplates the possibility of recalling witnesses who have already testified. There was no demonstrated prejudice by the Defendants that the witnesses will have any difficulty in testifying on the said documents. Additionally, the 2nd Defendant had not led evidence to indicate where the difficulty would arise and particularly over what Issue or documents. Additionally, the provision of Order 18 Rule 10 of the Civil procedure Rules. 2010 allowed the Court to recall witnesses by holding as follows:-The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit. 35.In the case of:- “David Muthami Muthee – Versus - Estate of James Titus Wambua & 4 others [2022] KEELC 1212 (KLR)”, the Court allowed re - opening of the case and filing of further documents through an application made after both plaintiff’s and defence cases were heard and closed.Additionally, in the case of:- “Nyutho – Versus - Njoroge & 3 others (Environment & Land Case 98 of 2013) [2022] KEELC 83 (KLR) (12th May, 2022) (Ruling)”, the Court allowed filing of additional documents despite the case being part heard as it is our current situation. 36.The Learned Counsel averred that courts have held that procedural rules should not override the overriding objective of doing substantive justice to parties. The provision of Article 159(2)(d) of the Constitution obligates this Court to administer justice without undue regard to procedural technicalities. The 2nd Defendant argued that the documents were not relevant to this matter. However, these documents go directly to the heart of the 2nd Interested Party’s position in these proceedings. The 2nd Interested Party was joined herein as it held a registered charge over the suit property (Title No. KWALE/SHIMONI ADJ./280) to secure credit facilities granted to both Kwale Cement Factory Limited. The validity and lawful exercise of the Bank's statutory power of sale over the charged property is central to this matter. 37.The statutory notices (items (a) and (b) above) demonstrate that the Bank duly complied with the mandatory pre-sale notice requirements under the provision of Sections 90 and 96(2) of the Land Act, No. 6 of 2012 before exercising its statutory power of sale. These notices were Issued to Kwale Cement Factory Limited as the chargor, following its default on the facilities secured by the charge over the suit property. The Letter of Offer to Pavedar Limited (item (c)) and the related debenture and stamp duty documents (items (d) to (h)) demonstrate the legitimate basis upon which Pavedar Limited took the facility from ABC Bank and charged the property. These documents are directly relevant to the question of whether the Plaintiff obtained good title to the suit property, and whether the Bank’s charge and security rights are valid and enforceable. 38.The certified loan account statements (items (i) and (j)) provide the Court with an accurate picture of the outstanding indebtedness owed by both Pavedar Limited and Kwale Cement Factory Limited, and therefore establish the Bank’s legitimate financial interest in the subject property. Without these statements, the Court would be deprived of material evidence necessary for a full and fair determination of the matter. The 2nd Defendant further contended that the role of an Interested Party was limited and did not extend to introducing new evidence. An Interested Party was not a mere spectator in proceedings in which it had a legitimate interest. Courts were now emphatic that an Interested Party participates in proceedings to the extent necessary to protect its interest, and may be called upon to lead evidence and make submissions on matters affecting its interest. 39.The 2nd Interested Party held a registered Charge over the suit property. Any judgment in this matter directly affected the validity and enforceability of that charge. It would be manifestly unjust to prevent the 2nd Interested Party from placing before the Court the very documents that establish the legality and propriety of its security interest. 40.In conclusion, the Learned Counsel prayed that the application by the 2nd Interested Party be allowed as prayed and the documents attached therein be deemed as properly filed. VI. Analysis & Determination. 41.This Honourable Court has carefully read and considered the pleadings filed by the Plaintiff, the Defendants and the 2nd Interested Party/Applicant, together with the affidavits sworn in support and opposition, the written submissions, the plethora of authorities cited, and the relevant provisions of the Constitution of Kenya, 2010 and the governing statutes. 42.In order to arrive at a just, equitable and reasoned determination, this Honourable Court has framed the following six ( 6) salient Issues for consideration:-a.Whether the 2nd Interested Party has “the locus standi” (legal capacity) to introduce a Supplementary List and Bundle of Documents at this stage of proceedings.b.Whether the Court should exercise its discretion under the provision of Articles 50 (1) and 159 of the Constitution, and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 to admit the additional documents sought to be introduced.c.Whether the application by the 2nd Interested Party amounts to re - opening the Plaintiff’s case through a proxy litigant, thereby occasioning prejudice to the Defendants.d.Whether the documents sought to be introduced raise new Issues outside the pleadings of the principal litigants, including loan facilities, charges, and statutory power of sale, and whether such expansion of scope is permissiblee.Whether the delay in filing the documents has been reasonably explained, or whether the application is procedurally improper and an abuse of the court process.f.Who should bear the costs of the application. Issue No. a). Whether the 2nd Interested Party has “the locus standi” (legal capacity) to introduce a Supplementary List and Bundle of Documents at this stage of proceedings. 43.Under this sub‑title, the Honourable Court shall examine whether the 2nd Interested Party, African Banking Corporation Limited, has the requisite “locus standi” (legal capacity) to introduce a Supplementary List and Bundle of Documents at this stage of proceedings. To determine whether the 2nd Interested Party (African Banking Corporation Limited) has the requisite locus standi (legal standing and capacity) to introduce a Supplementary List and Bundle of Documents at this advanced stage of the proceedings, the court must balance the strict procedural rules governing trial management against the constitutional mandates of substantive justice and the unique, secondary status of an interested party 44.The Applicant has invoked the provision of Article 159(2)(d) of the Constitution of Kenya, 2010, which dictates that “justice shall be administered without undue regard to procedural technicalities.” This is read alongside the provision of Articles 25 ( c ) and 50 (1) & ( 2 ), which guarantees the right to a fair and public hearing. While the Applicant argues that shutting out critical documents prioritizes technicalities over substantive justice, the courts have consistently and vehemently submitted that procedural rules were not mere technicalities. In the case of:- “Raila Odinga & 5 Others – Versus - Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR”, the Supreme Court clarified:“The Article [159] was never meant to oust of the window specific timelines or procedural requirements laid down by statutes... Procedural rules are the handmaidens of justice, meant to maintain order, predictability, and fairness.” 45.Further under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 places a statutory premium and duty on the court to facilitate the “just, expeditious, proportionate, and cost-effective determination of civil disputes.” The Honourable Court has been delighted and hence persuaded from the authority of:- “Jirongo – Versus - Soy Developers Limited & 9 others (Supra) cited by the Learned Counsel for the Plaintiff/Respondent which elaborately spells out the fundamental legal parameters for the Court to consider while granting leave for filing of additional documents. Certainly, introducing voluminous documents after the close of the principal parties’ cases directly offends the principle of an “expeditious” and “cost-effective” trial. I totally concur that this forces the re - opening of closed cases, lengthening the trial and escalating litigation costs, which runs contrary to the core tenets of the O2 principle. 46.The provision of Order 11 Rules 3 and 7 of the Civil Procedure Rules, 2010 explicitly mandate that all parties must discover, list, and bundle all documents they intend to rely upon during the pre-trial phase. The objective is to eliminate “trial by ambush.” By seeking to introduce documents long after the pre-trial phase and after the cross-examination of the principal witnesses, the Applicant bypasses the statutory regime of the provision of Order 11 of the Civil Procedure Rules, 2010 on case management without a compelling, legally recognizable excuse. 47.The defining question regarding locus standi here is whether an Interested Party—whose presence is secondary—has the operational capacity to alter the evidentiary landscape after the principal parties (the Plaintiff and Defendants) have rested their cases.The Supreme Court of Kenya established the locus classicus guidelines on the role and limitations of an interested party in the opinion by the Supreme Court “In the Matter of Advisory Opinions under Article 163 (3) of the Constitution, Speaker of the National Assembly & Another – Versus - Attorney General & 3 Others [2013] eKLR”:1.An interested party is one who has a stake in the outcome of the case but is not a principal party.2.The interest must be material, clear, and not remote.3.An interested party cannot be allowed to introduce completely new causes of action or broaden the footprint of the litigation beyond what the principal parties have pleaded. 48.Legally speaking, applying this test, African Banking Corporation Limited possesses locus standi to protect its proprietary interest as a chargee (the bank holding the security interest over the suit land). However, its locus standi is derivative and secondary, not primary. I discern that it cannot step into the shoes of the Plaintiff to reconstruct or salvage a claim that the Plaintiff failed to properly prove during its own window of presentation. I cannot agree more with the submissions by the 2nd Defendant to the effect that these are attempts to seal the gaps from the Issues emerging during the Cros – Examination of the Plaintiff and its witness. Indeed, it resembles an act of stealing a match. I dare say, there will be no justice there dispensed by this Court at all. 49.In the case of:- “Memusi – Versus - Ole Ntimama [2014] eKLR”, the court observed that an interested party is joined to assist the court with its unique perspective on the existing dispute, not to hijack the proceedings or act as a proxy litigant to cure the procedural or evidentiary oversights of a principal party. The 2nd Defendant's replying affidavit reveals that the documents sought to be introduced (specifically Items 4 through 10) directly touch upon the loan facility, the creation of the charge, and the bank’s statutory power of sale. If these Issues were not part of the Plaintiff's primary pleadings or the Issues framed for trial, the Interested Party lacks the locus standi to introduce them now. To hold otherwise would allow an interested party to unilaterally expand the scope of the dispute, forcing the court to litigate an entirely new case under the guise of an ongoing trial. 50.I reiterate that the threshold for an application to introduce new evidence after the close of cases is exceptionally high. Locus standi to introduce new evidence at this late hour requires the applicant to demonstrate that the evidence could not have been obtained with reasonable diligence earlier. In the case of:- “Nicholas Kiptoo Arap Korir Salat – Versus - Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR”, the Supreme Court laid down the pillars for granting discretionary leave where delays occur:a.The extension must be sought systematically and without inordinate delay.b.The explanation for the delay must be plausible and reasonable.c.The grant of the order must not unfairly prejudice the respondent 51.The Applicant’s justification of “inadvertence” and “subsequent retrieval of archived records” fails the Salat test. As a professional and such a reputable financial institution – a commercial bank, the Applicant is presumed to have custody and structured archiving of its securities, charge documents, and loan ledgers. Claiming inadvertence five years into a suit filed in 2021 does not constitute a plausible explanation.The 2nd Defendant notes that the 1st Defendant passed away while the suit was pending, and that she is an elderly widow facing health challenges. 52.Additionally, in the case of:- “Elijah Sipoya & Others – Versus - Republic [2017] eKLR”, the court held that admitting fresh evidence at a stage where the opposite party can no longer effectively counter it due to changed circumstances (such as the death of a material witness or the advanced age of a party) constitutes a violation of the right to a fair trial under the provision of Article 50 of the Constitution.Because the 1st Defendant is deceased, he can never be recalled to be cross-examined on these “newly discovered” bank documents. The Interested Party’s right to present its case cannot override the Constitutional right of the Defendants to a fair, balanced, and predictable trial. 53.While African Banking Corporation Limited possesses general locus standi to participate in the suit to protect its rights as a chargee, it lacks the specific locus standi to introduce a Supplementary List and Bundle of Documents at this stage of the proceedings. The 2nd Interested Party was joined in these proceedings for the limited purpose of protecting its interest as chargee of the suit property. In its Supporting Affidavit, the Bank averred that the supplementary documents relate to the exercise of its statutory power of sale and are critical to the just determination of the dispute. In so doing, they would be overshooting their legal mandate to the chagrin – natural Justice, Equity and Conscience - of the other parties in this case thereof. 54.On the other hand, the 2nd Defendant’s Replying Affidavit argued that the Bank’s attempt to introduce documents at this stage amounts to reopening the Plaintiff’s case through a proxy litigant, thereby expanding the scope of the dispute beyond the pleadings of the principal parties. The Respondent further contended that the Bank had ample opportunity during pre‑trial compliance to file all documents it intended to rely on, and that its role as an Interested Party does not extend to supplementing the Plaintiff’s evidentiary gaps. 55.The Court notes and re – emphasise that locus standi of an Interested Party is not absolute. While the provision of Articles 25 ( c ), 50 (1) & ( 2 ) and Article 159(2)(d) of the Constitution of Kenya, 2010 safeguard the right to fair hearing and substantive justice, these provisions must be balanced against the principle of finality of litigation and the orderly conduct of trial.The authorities cited above make clear that an Interested Party cannot assume the role of a principal litigant. Its participation is confined to protecting its identifiable interest. Introducing documents that effectively supplement the Plaintiff’s case risks transforming the Interested Party into a proxy claimant, contrary to the holding in the case of:- “Francis Karioko Muruatetu & Another – Versus - Republic & 5 Others [2016] eKLR” and “Trusted Society of Human Rights Alliance – Versus - Mumo Matemu & 5 Others [2014] eKLR”. 56.Therefore, the Court finds that while the 2nd Interested Party has a legitimate stake in the proceedings by virtue of its charge over the suit property, its locus standi does not extend to introducing new evidence that alters the evidentiary landscape after the Plaintiff and Defendants have closed their cases. 57.Its capacity is constrained by the following legal boundaries:a.Procedural Default: It failed to comply with the mandatory pre-trial disclosure timelines dictated by Order 11 of the Civil Procedure Rules.b.Derivative Status: Under the Supreme Court's Speaker of the National Assembly guidelines, as an interested party, it cannot expand the boundaries of the trial or introduce new Issues (loan facilities and statutory power of sale) not captured in the primary pleadings.c.Incurable Prejudice: Introducing these documents after the close of the Defendants' cases shifts the evidentiary landscape at a time when the Defendants can no longer effectively defend themselves, creating a severe imbalance that violates Article 50(1) of the Constitution. 58.Accordingly, I strongly hold that the 2nd Interested Party’s application must be declined, as its secondary status does not empower it to reconstruct a closed trial through the back door. Issue No. b). Whether the Court should exercise its discretion under Articles 25 ( c ), 50 (1), (2) and 159 of the Constitution, and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 to admit the additional documents sought to be introduced.1.Under this sub‑title, the Honourable Court shall examine whether discretion should be exercised under the provision of Articles 25 ( c ), 50(1) & ( 2 ) and 159 of the Constitution of Kenya, 2010, and Sections 1A, 1B and 3A of the Civil Procedure Act, 2010 to admit the Supplementary List and Bundle of Documents sought to be introduced by the 2nd Interested Party. To determine whether this Court should exercise its judicial discretion to admit the 2nd Interested Party’s Supplementary List and Bundle of Documents, we must weigh the Applicant's plea for substantive justice against the constitutional right to a fair, predictable, and orderly trial. 60.While the court possesses inherent power to admit evidence at any stage, this discretion is not a blank cheque. It is governed by clear statutory and jurisprudential boundaries. The Applicant argues that under Article 159(2)(d) of the Constitution of Kenya, this Court must look past “the procedural technicalities” of time and admit the documents to determine the dispute on its true merits. 61.However, this argument misinterprets the relationship between substantive justice and procedural law: 62.On procedural rules being custodians of fairness, I make reference to the case of “Raila Odinga & 5 Others (Supra)”, where the Supreme Court established that Article 159 is not a panacea for deliberate or negligent non-compliance with court procedures. Rules governing the introduction of evidence exist to ensure equity. 63.On the right to a fair hearing being absolute, the Honourable Court takes note that under the provision of Articles 25 ( c ) & 50 (1) & ( 2 ), both parties have a right to a fair trial. A fair trial requires a predictable process where neither side is ambushed. Admitting new documents after the defense has closed its case forces the 2nd Defendant to choose between two unfair outcomes: face an entirely new case without the means to properly answer it, or undergo the physical and financial strain of a reopened trial. 64.The Applicant invokes the Overriding Objective (“O2 Principle”) under the provision of Sections 1A and 1B, alongside the court’s inherent powers under Section 3A, to urge the court to admit the documents. A proper reading of these sections defeats, rather than supports, the Applicant’s case: 65.The provision of Sections 1A and 1B mandate the court to ensure that cases are resolved in an expeditious and cost-effective manner. Being a Court of record, this suit was filed in the year 2021. It is now year 2026 which is close to five ( 5 ) years down the line.The principal parties have fully ventilated their evidence and formally closed their cases.Admitting these documents now would require the court to reopen the trial, allow the recall of witnesses, grant time for further cross-examination, and potentially allow the defense to file supplementary replying evidence.This directly defeats the statutory command to conclude litigation swiftly and economically. The legal maxim – “Justice Delayed is Justice Denied” comes in handy here. 66.Inherent power is reserved to prevent the abuse of the court process and to meet the ends of justice. It cannot be used to bypass express statutory provisions, such as the mandatory pre-trial disclosure timelines set out under the provision of Order 11 of the Civil Procedure Rules. 67.In the landmark case of “Nicholas Kiptoo Arap Korir Salat – Versus - Independent Electoral and Boundaries Commission & 7 Others (Supra)”, the Supreme Court laid down the strict pillars for the exercise of such court discretion:i.The explanation for the delay must be plausible. The Applicant’s excuse of “inadvertence” and “retrieval of archived records” fails this test. A commercial bank is legally expected to keep impeccable, readily accessible custody of its security and charge registries.ii.The application must be made without inordinate delay. Waiting five years after the inception of the suit—and specifically waiting until after the defense closed its case—is an inordinate, unexplained delay. 68.A central question in exercising judicial discretion is whether the prejudice suffered by one party can be remedied by an award of costs.In this case, the prejudice to the 2nd Defendant is profound and incurable: 69.The 1st Defendant passed away during the pendency of these proceedings. He can never be recalled to testify, provide context, or be cross-examined on the bank’s “newly discovered” loan ledgers or charge documents.The 2nd Defendant is an elderly widow facing health challenges. Subjecting her to a reopened trial to fight a reconstructed case compromises her well-being and her constitutional right to an orderly conclusion of litigation. 70.Further, in the case of:- “Benjoh Amalgamated Limited – Versus - Kenya Commercial Bank Limited [2014] eKLR”, the court held that discretion should not be exercised to allow a party to fill glaring gaps in its case after realizing its weaknesses during cross-examination. The timing of the Applicant’s motion strongly suggests a tactical attempt to salvage the Plaintiff’s case through a secondary proxy. 71.Judicial discretion must be exercised on sound legal principles, not on sympathy.While the court prefers to determine matters on their merits, it cannot do so by tearing up the rules of fair play. The 2nd Interested Party had ample opportunity since 2021 to discover and file these documents under the provision of Order 11. Its failure to do so, combined with an implausible excuse and the severe, irreversible prejudice that would be caused to an elderly, bereaved Defendant, tips the scales entirely against the exercise of this Court’s discretion.To protect the integrity of the trial process and uphold the provision of Articles 25 ( c ) & 50 (1) & ( 2 ) of the Constitution, the Court must refuse to exercise its discretion and deny the application. 72.The 2nd Interested Party argued that the documents are critical to the just determination of the dispute, relate directly to the suit property and the Bank’s statutory power of sale, and do not introduce a new cause of action. It further contended that no prejudice would be occasioned to the Plaintiff or Defendants, as they would have an opportunity to peruse and respond. The 2nd Defendant, however, maintained that admitting the documents at this stage would unfairly prejudice her, given her advanced age and health challenges, compounded by the demise of the 1st Defendant. She argued that the application was a deliberate attempt to fill evidentiary gaps in the Plaintiff’s case, and that the Bank had ample opportunity during pre‑trial compliance to file all documents. 73.The Court acknowledges that the provision of Articles 25 ( c ) & 50 (1) & ( 2 ) and Article 159(2)(d) safeguard the right to fair hearing and substantive justice. However, these rights must be balanced against the principle of finality of litigation and the orderly conduct of trial. The Court notes that the Plaintiff and Defendants have already closed their cases. Allowing the 2nd Interested Party to introduce documents now would alter the evidentiary landscape, effectively reopening the Plaintiff’s case through a proxy litigant. This would occasion prejudice to the Defendants. 74.The Court further finds that the explanation offered by the 2nd Interested Party—that the delay arose from inadvertence and retrieval of archived records—is insufficient to justify reopening proceedings at this advanced stage. The Bank had ample opportunity during pre‑trial compliance to file all relevant documents. 75.The Honourable Court holds that while it has discretion under the provision of Articles 25 ( c ), 50 (1) & ( 2 ) and 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21; Section 3 of the Environment & Land Court Act, No. 19 of 2011 to admit additional documents, such discretion should not be exercised in this instance. The prejudice to the Defendants, the risk of reopening the Plaintiff’s case indirectly, and the need for finality of litigation outweigh the Applicant’s plea. 76.Accordingly, the Court proceeds to decline to exercise its discretion to admit the Supplementary List and Bundle of Documents. The application must fail in the given circumstances therof. Issue NO. c). Whether the application by the 2nd Interested Party amounts to re - opening the Plaintiff’s case through a proxy litigant, thereby occasioning prejudice to the Defendants 77.Under this sub‑title, the Honourable Court shall examine whether the 2nd Interested Party’s application to file a Supplementary List and Bundle of Documents amounts to an impermissible re - opening of the Plaintiff’s case through a proxy, this Court must analyze the underlying relationship between the parties, the nature of the evidence sought to be introduced, and the strategic timing of the motion.The law strictly prohibits litigants from using third parties as conduits to rebuild a case once the principal parties have rested. 78.A critical evaluation of the 2nd Defendant’s Replying Affidavit reveals a striking procedural anomaly: the documents sought to be introduced by the African Banking Corporation Limited (specifically Items No. 4, 5, 6, 7, 8, 9, and 10) are documents that directly bolster or complement the Plaintiff’s pleaded case regarding ownership, root of title and the financial history of the suit property. 79.Under Kenyan jurisprudence, an interested party cannot be used to introduce evidence that should have been produced by a principal litigant. In the case of:- “Joseph Nthenge & 3 Others – Versus - Mastermind Tobacco (K) Limited & Another [2014] eKLR”, the court held that:“A party who is not a principal litigant cannot be permitted to bring through the backdoor evidence that reconstructs or alters the main substratum of the plaintiff’s or defendant’s case. To do so would allow proxy litigation, where one party fights a battle behind the shield of another.” 80.By attempting to introduce loan facilities, charges, and statutory power of sale records after the Plaintiff’s and Defendants' cases have closed, the 2nd Interested Party is effectively acting as an auxiliary arm of the Plaintiff. The timing suggests that after observing the weaknesses and evidentiary gaps exposed during the cross-examination of the Plaintiff's witnesses, the 2nd Interested Party stepped in to patch those holes. This turns the 2nd Interested Party from a neutral observer protecting a commercial charge into an active proxy prosecuting the main claim. 81.As already stated herein, the role of an interested party is strictly defined and bounded. In the definitive Supreme Court decision “In the Matter of Advisory Opinions under Article 163(3) of the Constitution, Speaker of National Assembly & Another – Versus - Attorney General & 3 Others [2012] eKLR”, the apex court made it clear that an interested party’s participation must be limited to its immediate, demonstrable stake in the outcome. It cannot expand the frontiers of the litigation or offer remedies or claims that the principal parties did not seek. 82.Furthermore, in “Memusi – Versus - Ole Ntimama (Supra)”, the court observed:“An interested party is a peripheral player to the dispute... It is not the business of an interested party to repair the broken walls of a principal party’s case.” 83.The 2nd Interested Party’s interest in this suit is derivative, arising solely out of its status as a chargee over the land. It does not possess independent locus standi to litigate the primary questions of liability, fraud, or title defects raised between Pavedar Limited and the Defendants. By introducing documents meant to stabilize the evidentiary foundation of the property's transaction history, the Bank exceeds its secondary mandate and acts as a proxy. 84.Allowing a proxy litigant to reopen the trial through the backdoor at this advanced stage inflicts severe, incurable prejudice on the Defendants, violating their right to a fair trial under the provision of Articles 25 ( c ) & 50 (1) & ( 2 ) of the Constitution. During the pendency of these 2021 proceedings, the 1st Defendant, Stephen Chege Matheri, passed away. His case was defended and closed based on the evidence available on record at that time.If the 2nd Interested Party is permitted to introduce fresh documents now, the defense is stripped of the opportunity to have the 1st Defendant review, comment on, or counter these records.A deceased party cannot be recalled to confront fresh evidence. This creates a permanent, prejudicial imbalance in the evidentiary landscape. 85.The 2nd Defendant, Dorcas Wanjiku Chege, is an elderly widow facing significant health challenges.Litigation must have a definitive end (interest reipublicae ut sit finis litium).Forcing her back into the witness box to face cross-examination on an entirely new set of financial and charge documents—re - opened through a proxy—is a gross miscarriage of justice.In the case of:- “Elijah Sipoya & Others – Versus - Republic [2019] eKLR”, the court affirmed that forcing vulnerable or aged litigants to endure protracted, restructured trials due to the adverse party's late-stage maneuvers constitutes a violation of the right to an expeditious and orderly trial. 86.The 2nd Interested Party was joined in these proceedings solely to protect its interest as chargee of the suit property. The Plaintiff and Defendants have already testified and closed their cases. The documents sought to be introduced by the Bank relate to loan facilities, charges, and the exercise of statutory power of sale. These matters were not pleaded by the Plaintiff and would expand the scope of the dispute beyond the Issues framed by the principal litigants.The 2nd Defendant argued that the application is a deliberate attempt to fill evidentiary gaps in the Plaintiff’s case, which became apparent during trial, and that the Bank is acting as a proxy litigant to salvage the Plaintiff’s claim. She further contended that allowing the application would prejudice her due to her advanced age, health challenges, and the demise of the 1st Defendant, making it impractical to recall witnesses or reopen proceedings. 87.By and large, the Court finds merit in the Respondent’s contention. Allowing the 2nd Interested Party to introduce documents at this stage would alter the evidentiary landscape after closure of the Plaintiff’s and Defendants’ cases, thereby undermining the integrity of the trial process; Strengthen the Plaintiff’s claim indirectly through a non‑principal party, contrary to the principle that Interested Parties cannot prosecute or supplement the case of a principal litigant; Introduce new Issues not pleaded by the Plaintiff, including matters relating to loan facilities, charges, and statutory power of sale, which were not part of the original pleadings and occasion prejudice to the Defendants, particularly the 2nd Defendant, who would face hardship in challenging new evidence due to age and health constraints, compounded by the demise of the 1st Defendant. 88.The Court is persuaded that litigation must come to an end, and parties should not be permitted to use proxies or Interested Parties to reconstruct their cases after weaknesses have been exposed during cross‑examination. To allow such reopening would undermine the principle of finality of litigation and erode confidence in the judicial process. 89.The Notice of Motion application filed by the 2nd Interested Party is not a benign request for late disclosure; it is a tactical attempt to resuscitate and salvage the Plaintiff's case through a secondary proxy.Because an interested party must remain within its peripheral bounds, and because admitting these documents would cause severe, irreversible prejudice to a grieving, elderly Defendant who can no longer rely on her deceased co-defendant, the application amounts to an impermissible proxy maneuver and must be rejected. 90.In a nutshell, the Honourable Court holds that the application by the 2nd Interested Party amounts to re - opening the Plaintiff’s case through a proxy litigant. Such reopening would occasion undue prejudice to the Defendants, undermine the orderly conduct of trial, and contravene the principle of finality of litigation. Issue No. d). Whether the documents sought to be introduced raise new Issues outside the pleadings of the principal litigants, including loan facilities, charges, and statutory power of sale, and whether such expansion of scope is permissible. 91.Under this sub title the Honourable Court shall examine whether the 2nd Interested Party can introduce these additional documents, this Court must examine a foundational rule of civil procedure: parties are bound by their pleadings. Allowing a peripheral party to introduce entirely new causes of action, financial instruments, or statutory interventions at the tail end of a trial distorts the scope of the dispute and undermines the integrity of judicial proceedings. 92.Under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010 pleadings must state concisely the material facts on which a party relies for their claim or defense. The purpose of pleadings is to narrow down the dispute to specific, well-defined Issues so that neither side is caught off guard.The 2nd Defendant’s Replying Affidavit notes that the principal litigants—the Plaintiff (Pavedar Limited) and the Defendants (Stephen Chege Matheri and Dorcas Wanjiku Chege)—fully pleaded and litigated their respective cases without anchoring the dispute on the Bank's internal commercial arrangements. 93.The documents the Bank now wants to introduce completely new dimensions to the lawsuit:a.The Underlying Loan Facilities: Private commercial borrowing agreements between the Bank and its client.b.The Registered Charge: The specific legal instrument creating a security interest.c.The Exercise of the Statutory Power of Sale: The statutory foreclosure and auction processes governed by the provision of Section 90 of the Land Act, No. 6 of 2012. 94.Similarly, this Court is guided by the legal dictum under the provision of Order 2 Rule 6 of the Rules. To support that legal preposition, I seek refuge from the seminal case of “Dgalani – Versus - Republic [2021] eKLR”, which tracked established principles from the Court of Appeal in “IEBC – Versus - Stephen Mutinda Mule & 3 Others [2014] eKLR”, the court affirmed:“The law is fairly well settled that parties are bound by their pleadings and that evidence which is at variance with the pleadings or which introduces a completely new case without amendment should not be entertained or relied upon by the court.” 95.Because the principal parties did not plead or frame Issues around the validity of the loan accounts or the procedural compliance of a statutory sale, these documents raise entirely fresh triable Issues that sit outside the parameters of the current suit.The pleadings filed by the Plaintiff in this matter did not raise Issues relating to loan facilities, charges, or the exercise of statutory power of sale. The Plaintiff’s case was framed around ownership and dealings with the suit property, not the financial arrangements between the Bank and the registered proprietor. 96.The documents sought to be introduced by the 2nd Interested Party, however, directly relate to loan facilities advanced by the Bank, the charge registered over the property, and the Bank’s statutory power of sale. These matters were not pleaded by the Plaintiff and would therefore expand the scope of the dispute beyond the Issues framed by the principal litigants.The 2nd Defendant has argued that such expansion would unfairly prejudice the Defendants, as it would introduce new Issues requiring fresh responses and potentially recalling witnesses, despite the fact that both the Plaintiff and Defendants have already closed their cases. The Respondent further contended that the Bank’s attempt to introduce these documents is a deliberate effort to salvage the Plaintiff’s case by filling evidentiary gaps exposed during trial. 97.The Court finds that the documents sought to be introduced indeed raise new Issues outside the pleadings of the Plaintiff and Defendants. While the Bank has a legitimate interest as chargee, its role as an Interested Party is limited to protecting that interest within the scope of the existing pleadings. Allowing the introduction of documents relating to loan facilities, charges, and statutory power of sale would impermissibly enlarge the scope of the dispute, contrary to the principles in “IEBC – Versus - Mule (supra)”. It would also amount to reopening the Plaintiff’s case indirectly, thereby occasioning prejudice to the Defendants. 98.The Court is persuaded that litigation must be confined to the Issues pleaded, and expansion of scope through Interested Parties is impermissible. To permit otherwise would undermine the orderly conduct of trial, erode the principle of finality of litigation, and compromise the Defendants’ right to a fair trial under the provision of Articles 25 ( c ) & 50 (1) & ( 2 ) of the Constitution. 99.The Honourable Court holds that the documents sought to be introduced raise new Issues outside the pleadings of the principal litigants, including loan facilities, charges, and statutory power of sale. Such expansion of scope is impermissible in law, as it would unfairly prejudice the Defendants and undermine the principle that parties are bound by their pleadings. Issue No. e). Whether the delay in filing the documents has been reasonably explained, or whether the application is procedurally improper and an abuse of the court process. 100.Under this sub – title, the Honourable Court shall examine whether this Court should admit the 2nd Interested Party’s Supplementary List and Bundle of Documents, we must evaluate the timeline of this litigation alongside the justification offered for the delay.Under Kenyan civil jurisprudence, an application to introduce evidence after the close of the principal parties' cases must overcome a strict threshold. Unreasonable and inordinate delay coupled with an implausible explanation renders an application procedurally improper and an abuse of the court process. 101.The provision of Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules, 2010 require parties to file all documents they intend to rely on at the time of filing pleadings. In the case of:- “Ivita – Versus - Kyumbu [1984] KLR 441”, the Court held that justice must balance the interests of both parties, and delay must be explained satisfactorily to avoid prejudice. 102.The 2nd Interested Party explained that the delay in filing the documents arose from inadvertence and the subsequent retrieval of archived records. It argued that the application was filed promptly upon discovery of the documents and was not intended to delay proceedings.The 2nd Defendant, however, contended that the explanation was insufficient and that the delay was inordinate. She argued that the Bank had ample opportunity during pre‑trial compliance to file all documents it intended to rely on, and that the present application was a calculated attempt to cover omissions in the Plaintiff’s case rather than a genuine inadvertence. 103.The Court notes that the Plaintiff and Defendants have already closed their cases. The timing of the application—after closure of evidence—raises legitimate concerns of prejudice and procedural impropriety.While inadvertence and retrieval of archived records may explain some delay, the Court finds that the explanation offered by the 2nd Interested Party is not sufficient to justify reopening proceedings at this advanced stage. The Bank had ample opportunity during pre‑trial compliance to file all relevant documents, and its failure to do so cannot be excused by vague references to inadvertence. 104.Allowing the application would undermine the principle of finality of litigation and prejudice the Defendants, particularly given the advanced age and health challenges of the 2nd Defendant and the demise of the 1st Defendant. 105.The Honourable Court holds that the delay in filing the documents has not been reasonably explained. The application is procedurally improper and amounts to an abuse of the court process. Issue No. f). Who should bear the costs of the application. 106.Under this sub‑title, the Honourable Court shall examine who ought to bear the costs of the Notice of Motion dated 6th March 2026 filed by the 2nd Interested Party. It is now well established that the Issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”. 107.In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 108.The 2nd Interested Party sought leave to file additional documents after the Plaintiff and Defendants had closed their cases. The Court has already found that the 2nd Interested Party lacked locus standi to introduce the documents at this stage. The Court declined to exercise discretion under Articles 50 and 159 and Sections 1A, 1B and 3A of the Civil Procedure Act to admit the documents.The application amounted to reopening the Plaintiff’s case through a proxy litigant, thereby occasioning prejudice to the Defendants.The documents sought to be introduced raised new Issues outside the pleadings of the principal litigants, which was impermissible.The delay in filing the documents was not reasonably explained and amounted to abuse of the court process.Given these findings, the application has failed in its entirety. The Defendants have been compelled to respond to an application that was procedurally improper and prejudicial. 109.The Court is persuaded that costs should follow the event. The Defendants, particularly the 2nd Defendant, have incurred unnecessary expense and effort in opposing an application that was misconceived. The Plaintiff did not object to the application, but the opposition was mounted by the Defendants who have successfully resisted it.The Court finds no reason to depart from the general principle under Section 27(1) of the Civil Procedure Act. The unsuccessful party—the 2nd Interested Party—must bear the costs of the application. 110.The Honourable Court holds that the costs of the Notice of Motion application dated 6th March, 2026 shall be borne by the 2nd Interested Party/Applicant – the African Banking Corporation Limited. VII. Conclusion & Disposition 111.In long analysis, the Honourable Court has carefully considered and weighed the conflicting parties’ interests as regards the locus standi of the 2nd Interested Party, the scope of discretion under the provision of Articles 25 ( c), 50 (1) & ( 2 ) and 159 of the Constitution of Kenya, 2010, the overriding objective under Sections 1A, 1B and 3A of the Civil Procedure Act, the principles of finality of litigation, and the permissible role of Interested Parties in civil proceedings. Ultimately, in view of the foregoing detailed and expansive analysis of the framed Issues with regard to the application dated 6th March, 2026 and the Replying Affidavit dated 13th March 2026, this Court arrives at the following orders:-a.That the Notice of Motion application dated 6th March 2026 filed by the 2nd Interested Party, African Banking Corporation Limited, be and is hereby found to be unmerited and thus is accordingly dismissed.b.That the Supplementary List and Bundle of Documents annexed to the said application shall not be admitted on record, as their introduction at this stage would amount to reopening the Plaintiff’s case through a proxy litigant, enlarge the scope of the pleadings impermissibly, and occasion undue prejudice to the Defendants.c.That the delay in filing the said documents has not been reasonably explained, and the application be and is hereby found to be procedurally improper and amounts to an abuse of the court process.d.That the scheduled Defence hearing of the matter for 30th July, 2026 before ELC No. 1 Kwale through Physical means to be retained accordingly.e.That the costs of the Notice of Motion application dated 6th March, 2026 shall be borne by the 2nd Interested Party to the Plaint.It Is So Ordered Accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 16TH DAY OF JUNE 2026.…………………………….HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURT AT KWALERuling delivered in the presence of:a. M/s. Daniel Disii, the Court Assistant.b. M/s. Kagure Advocate holding brief for Mr. Wairoto for the Plaintiff/Respondent.c. Mr. Mungai Kamau Advocate for the 1st Defendant/Respondent.d. Mr. Wagah Advocate for the 3rd Defendant/Respondent.e. Mr. Gakunga Advocate for the 2nd Interested Party/Applicant.f. No appearance for the 1st Interested Party and the 2nd Defendant/Respondent.