[2023] KEHC 23779 (KLR)

Rafiki Microfinance Bank Ltd v John & another (Civil Suit 49 of 2022) [2023] KEHC 23779 (KLR) (23 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23779 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 49 of 2022

DKN Magare, J

October 23, 2023

IN THE MATTER OF THE INTENDED SALE OF PLOT NUMBER MN 576 PURSUANT TO AN INFORMAL CHARGE DATED 22ND JANUARY 2021 TO SECURE A LOAN FACILITY OF KSHS. 1,202,941/= ADVANCED BY RAFIKI MICROFIANCE BANK LTD TO LILIAN AKINYI T/A GEOLALY ENTERPRISE AND IN THE MATTER OF APLICATIONJ FOR LEAVE TO SELL THE PROPERTY KNOWN AS PLOT NUMBER M.N. 576

Between

Rafiki Microfinance Bank Ltd

Applicant

and

Oucho Abura John

1st Respondent

Lilian Akinyi t/a Geolaly Enterprise

2nd Respondent

Ruling

1. Wonders will never cease. The plaintiff filed suit, against the defendant. They pushed for hearing stating that the defendant was delaying the case. I heard both sides and slated judgment for tomorrow about to conclude writing the judgment as it awaited delivery the plaintiff filed an application for adducing new evidence. They stated that the documents were from their Mombasa office and as such could not be found at the time of trial.

2. The evidence sought to be adduced is the same that is on record except that it is signed differently. The Defendant protested that the case was filed on false evidence at the hearing. There is now new evidence. This evidence was all along with the plaintiff. The documents already produced were also with the plaintiff. They are the plaintiffs. They knew that the loan herein was domiciled in Mombasa.

3. It was prudent that a little diligence will have yielded the documents during trial. Adduction of additional evidence must meet the principles set in the Supreme Court case of Cyrus Shakhala Khwa Jirongo v Soy Developers Ltd. & 9others (2020) eKLR at paragraph 42 where the Supreme Court stated as doth: -“(42)Having shown that the Petitioner did not exercise any diligence in obtaining the evidence that he now seeks to adduce before this Court, and that he had prior knowledge to or actual possession of such evidence, this Court would be restrained to continue in examining the other grounds of the application, to wit, whether the evidence would have any relevance to the matter, or indeed of probative value, and that such an exercise would indeed be a frittering of this Court’s judicial time. Once it has been established that the Petitioner failed in demonstrating that he was unable, with due diligence to obtain the evidence, or that it was in his possession, as pronounced in the principles in Wajir, then the Court would be left with no other option but to dismiss his application. In stating so as above, our findings are limited to the application before us and not the pending appeal which would ultimately be determined on its merits.”

4. The standard may be lower where no judgment has been delivered. However, difference is considering in the adducing of evidence. The new evidence should not be such that it is meant to seal loopholes the defence created in re- examination. The nature of the evidence sought to be adduced is not new. It is evidence that plaintiff had all along. It should not be such that it amounts to having a totally different case before the court.

5. The said documents must also be to re- introduce a completely new case to the existing course

6. There is no good grounds that have been shown to exist for reopening of the case.

7. The Applicant field submissions while the respondent did not file any submissions. I have gone through the detailed by the applicant. They state that the defendant’s sole witness produced an informal charge and other documents. They pray that they be allowed to adduce further evidence, as indicated in the application.

8. They stated that the plea of re-opening should be rejected if there is inordinate delay. This is in reliance to the case of Hannah Wairimu Ngethe v Francis Mungai Ng’ang’a & another [2016] eKLR, where Justice Achode LA as she was then, stated as doth: -“This court has not been told that the Petitioner has come upon or discovered some new and important evidence which after the exercise of due diligence was not within his knowledge. It is noted that the Petitioner has always had the advantage of counsel from the inception of this case.The court has also not been told where the Applicant has been for the last eight years since this cause was filed yet she was aware of it according to the Objector and has even had occasion to attend court in that regard.In my view this is an attempt by the Petitioner to have a second bite at the cherry. If he is allowed to re-open his case so as to prove it this would amount to allowing him to fill the gaps in his evidence after having heard the Objector’s case. That would be prejudicial to the Objector. - See Mombasa HCCC no 37 of 2007 Samuel Kiti Lewa v HFCK Ltd James M. Kagete.In the premise it is my considered view that allowing any of the two applications set out above would not only be prejudicial to the Objector but would also amount to an abuse of the court process.

9. They relied on the case of Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR where justice (rtd) MARYKASANGO held as doth: -“20. The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also such prayer for re-opening of the case will be defeated by in ordinate and unexplained delay.

10. However, the court in the above matter continued as follows: -“In this case Plaintiff’s counsel stated that the Plaintiff if allowed to re-testify would show that the charge document, which he did not produce in evidence, was diametrically different to the one produced by 1st Defendant’s witness, in evidence. In my view if the Plaintiff was allowed to re-open his case to so prove it would amount to allowing the Plaintiff to fill the gaps in his evidence. That would be prejudicial to the defendants. But more importantly the Plaintiff did not submit in evidence a charge instrument to be compare to the one produced by 1st Defendant.22. The Plaintiff also slept on his rights to apply to re-open his case. He should have made that application in August, 2010, when he obtained leave to re-amend his plaint. Having slept on his rights, the unexplained delay defeats his prayer.”

11. The Applicant relies on the case of state v Hepple, 279265, 271{1977}. Where a US Court posited that where a party deliberately withheld evidence, in order to have an advantage cannot be allowed to have an advantage. They also relied on a series of other foreign decisions. We have no dearth of our own homegrown jurisprudence on the matter.

12. They also argue that once evidence is admitted, the court should allow cross examination of witnesses pursuant to section 146(4) of the Evidence Act.

13. They pray that substantial justice be administered.

Analysis 14. This matter is pending for judgment tomorrow. The applicant closed their case after being cross examined. They introduced a witness informally at the hearing in place of Jane Warau, this was done less than a week before hearing. the Respondent was gracious enough to have the witness be heard.

15. He was thoroughly cross examined and we reserved judgment for tomorrow. Before long the application dated 25/7/2023 was filed seeking to introduce new evidence. The evidence is real not new but it is evidence the applicant has admitted to be have had all along, in one of their branches.

16. While addressing new evidence in the context of review, in the case of , I stated as doth: -“Discovery of new evidence, you are telling the court that the court was correct in determining the case with the evidence they had. However, there has been brought evidence, which was not available to me. After, ransacking through our grandmother’s house after her demise, we found this evidence which only her agemates knew. They were all dead when we testified. Had this evidence been placed in your hands, at the time we were testifying, your wisdom, of which we have no doubt about, will have led you elsewhere.”

17. The evidence herein was in the coast branch of the Applicant. Account was domiled in Mombasa. It did not take voodoo magic, surmises or hyperbole to know that the evidence of an account based in Mombasa is in Mombasa. There has to be diligence in placing evidence together. A party who though laziness, malaise or sheer lack of interest refuses to place before the court evidence cannot be allowed to run to the court for exercise of discretion.

18. The Supreme Court in the case Mohamed Abdi MahamudvAhmed Abdullahi Mohamed& 3others (2018) eKLR set out the governing principals of allowing additional evidence as follows:-“We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:(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.”

19. Though this was in relation of new evidence at appellate stage, it can apply to addition of evidence after close of the parties cases. 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.

20. In doing so, the court must be satisfied that this is new evidence. New evidence is one which could not be available at the time of pre trial conference and or the time of hearing.

21. In EO v COO [2020] eKLR, Justice R.E. Aburili, stated as doth: -“42. There is no evidence that the applicant is so educated beyond his KCPE Certificate level that he ought to have known that besides his oral testimony, he should have adduced documentary evidence to back up his oral testimony.43. No person should be disadvantaged in his case simply because he is not literate or legally empowered with legal knowledge or is not represented by Counsel.44. I am aware of the principle that ignorance of the Law is no defence but I am also alive to the fact that allowing the disputed evidence will not prejudice the appellant who is expected to be aware of some of the evidence sought to be adduced especially being a relative of MO and having had prior knowledge of the dispute of whether the applicant is a grandson of MO or not, vide a claim that he is the son to FS, the son to MO.”

22. In this matter, there is no evidence given what the impediment was in tendering the evidence at pretrial. The Defendant denied existence of any documents, except the guarantee for 402,941/=. The same should have been an alarm for them to find other documents.

23. The parties continued knowing not everything is well. After tendering evidence, is when gaps seem to have been noticed hence this application. I have reviewed the documents sought to be introduced. They are not new. They were available all the time. In fact were referred to in cross examination. The only trouble was that the Applicant wanted to steal a match on the Respondent. Unfortunately, the horses bolted.

24. The consequence of the foregoing is that the application dated 25/7/2023 is bereft of merit and is consequently dismissed in limine. Costs to the defendant.

Determination 25. I make the following orders: -a.The plaintiff’s Application dated 25/7/2023 is dismissed in limine with cost to the defendant.b.Costs of 5,000/= to the Respondentc.Judgment to proceed as scheduled.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 23RD DAY OF OCTOBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Ndinda for the ApplicantMr. Mkan for the Respondent