https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/786

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E1558 OF 2022** **ZAWADI THABU KITSAO……….................................................................PLAINTIFF** **VERSUS** **STANLEY NUGI KIGURU ........................................................................DEFENDANT** **RULING** **Introduction** 1. Before the Court is the Defendant/Applicant’s Notice of Motion dated 29th April 2026. The application principally seeks reopening of the hearing, an opportunity for the Defendant/Applicant to call his witnesses, and consolidation of this suit with MCCC E1559 of 2022, Naomy Jumwa Muranga v Stanley Nugi Kiguru, in which Eyre Motors Limited is stated to have been joined as a Third Party. The Motion was accompanied by a Certificate of Urgency and supported by the affidavit of Stanley Nugi Kiguru sworn on 29th April 2026. 2. The application arose from the proceedings of 23rd April 2026, when this matter came up for defence hearing. The Defendant states that the witness who was expected to testify was an officer who had been engaged in other official assignments and was therefore unable to attend court. According to the Applicant, communication regarding the witness’s unavailability reached counsel late in the day and counsel was consequently unable to inform the Plaintiff’s advocate sufficiently in advance. The request for an adjournment was declined, the defence case was closed and the matter was directed towards submissions. 3. The Plaintiff opposed the application and filed written submissions dated 10th July 2026. The Defendant thereafter filed written submissions dated 13th July 2026. 4. I have considered the Notice of Motion, the Supporting Affidavit, the Plaintiff’s written submissions, the Defendant/Applicant’s written submissions and the authorities relied upon by the parties. The Defendant/Applicant’s case 1. The Applicant’s case is that the failure to proceed on 23rd April 2026 was not deliberate. He maintains that the intended defence witness was engaged elsewhere on official duties and that the circumstances leading to his absence were outside counsel’s control. 2. The Defendant further contends that there existed, even before the defence case was closed, a pending Chamber Summons filed on 8th November 2025, said to have been served upon Eyre Motors Limited, with a return of service filed on 17th January 2026. The Defendant states that counsel drew this pending application to the Court’s attention on 23rd April 2026 and sought directions. He also states that counsel for Eyre Motors Limited attended court on that day but was not granted audience. 3. The Defendant’s subsequent submissions clarify that the Chamber Summons seeks to have Eyre Motors Limited joined as a Third Party in the present suit, so that the issue of liability as between the Defendant and the proposed Third Party can be determined. 4. It is further the Applicant’s position that this suit is related to MCCC E1559 of 2022, Naomy Jumwa Muranga v Stanley Nugi Kiguru, in which Eyre Motors Limited has already been joined as a Third Party. The two suits are said to have arisen out of the same accident. The Applicant submits that permitting the suits to proceed independently creates a risk of conflicting findings, particularly on liability. 5. In the initial application, the sister matter was stated to be coming up before Hon. Yalwala on 12th May 2026 for possible consolidation and selection of a test suit. By the time the Defendant filed his written submissions on 13th July 2026, the stated position was that MCCC E1559 of 2022 had been fixed for hearing on 26th October 2026 before Hon. Yalwala. 6. On consolidation, the Applicant relies, inter alia, on Law Society of Kenya v Centre for Human Rights, Supreme Court Petition No. 14 of 2013 and Korean United Church of Kenya & 3 Others v Seng Ha Sang [2014] eKLR, for the proposition that consolidation facilitates expeditious and proportionate disposal of related proceedings, saves time and costs and reduces duplication of effort. 7. The Applicant therefore urges the Court to reopen the matter, permit his witnesses to testify, facilitate determination of the Third-Party issue and consolidate this suit with MCCC E1559 of 2022. The Plaintiff’s case 1. The Plaintiff opposes the application. Her position is that the Defendant has had sufficient opportunity to defend the suit and has participated in the proceedings from the year 2022. She submits that the Defendant has failed to establish a reasonable or sufficient basis for reopening the proceedings after failing to avail his witnesses. 2. The Plaintiff argues that further reopening of the matter will occasion her prejudice through additional delay. She contends that litigation belongs to the litigant and not merely to his advocate, and that a party has an obligation to actively pursue his case. 3. In that regard, the Plaintiff relies on Latifa M. Ramadhan v Omar M. Ramadhan & Another, Mathews Sankok Shompa v Kenya Commercial Bank Limited & Others, and Ivita v Kyumbu [1984] KLR 441, essentially for the principles that prolonged and unexplained delay should not be excused merely by blaming counsel, and that the Court must consider whether justice can still be done notwithstanding delay. 4. The Plaintiff equally invokes natural justice and submits that substantive justice must operate for the benefit of both parties, not the Defendant alone. She therefore asks the Court to take into account her entitlement to have the litigation brought to an end without further unjustified delay. 5. I note, however, an apparent discrepancy in the Plaintiff’s written submissions. Although their heading correctly refers to the Defendant’s application dated 29th April 2026, the introductory portion refers to an application dated 5th February 2026. The application placed before this Court and supported by the material before me is the Notice of Motion dated 29th April 2026, and it is that application which I determine. **Issues for determination** 1. From the application, the responses and submissions of the parties, the following issues arise for determination: 2. Whether sufficient cause has been demonstrated to warrant reopening of the Defendant’s case; 3. Whether the proceedings ought to commence afresh or de novo; 4. What orders, if any, should issue regarding the pending Third-Party application and the proposed consolidation with MCCC E1559 of 2022; and 5. Who should bear the costs of the application. Whether the defence case should be reopened 1. There is no dispute that the Defendant was represented when the matter came up for defence hearing on 23rd April 2026 and that the defence sought an adjournment because its intended witness was unavailable. The adjournment was declined and the defence case was closed. 2. A court dealing with an application of this nature is required to balance two competing considerations. On one hand is the need for efficient and expeditious disposal of cases. On the other is the fundamental requirement that, where reasonably possible, a dispute should be determined after each party has had a fair opportunity to present its case. In civil proceedings, Article 50(1) protects the right to a fair hearing, while Article 159(2)(b) requires that justice should not be delayed. 3. The Court must therefore guard against two extremes: it must not permit a party to endlessly obstruct the progress of litigation through adjournments, but neither should procedural discipline become an end in itself where its effect would be to determine substantive liability without hearing material evidence that can still reasonably be received without irremediable prejudice to the opposite party. 4. In the present matter, a number of circumstances weigh in favour of granting the Defendant a limited opportunity to be heard. 5. First, the failure to proceed is attributed to the absence of a particular witness who was said to be engaged in official assignments. Whether counsel could have managed the witness more efficiently is a legitimate concern. Indeed, the original application itself indicates that counsel sought what was described as the “very last adjournment,” suggesting that the Court had already extended indulgence to the defence. That history cannot be ignored. 6. However, the consequence imposed was the complete closure of the defence case. The question therefore is whether, in all the circumstances, the failure on that particular date ought to permanently deprive the Defendant of the opportunity to call his evidence. 7. Second, the Applicant moved the Court promptly. The defence was closed on 23rd April 2026, while the present application is dated 29th April 2026 and was filed on 30th April 2026. This is therefore not a case in which a litigant allowed the matter to lie dormant for years before seeking the Court’s intervention. The factual circumstances are materially distinguishable from those considered in the authority of Latifa M. Ramadhan, where the appeal had remained dormant for years and had been dismissed for want of prosecution. The attached decision itself records that the High Court was concerned with prolonged inactivity and the absence of evidence showing attempts to prosecute the appeal. 8. Third, the record placed before me reveals an additional procedural matter which cannot be ignored. There was, according to the material before Court, already a Chamber Summons dated/filed on 8th November 2025 seeking the joinder of Eyre Motors Limited as a Third Party. The Defendant asserts that the application had been served and a return of service filed on 17th January 2026. 9. If that application is indeed pending, the Court must avoid a procedural course that renders it nugatory without its merits ever having been determined. Whether Eyre Motors Limited ought ultimately to be joined is a separate question which must be determined on the merits of that application. At this stage, I make no finding that joinder ought necessarily to be granted. 10. Fourth, there is the uncontested existence of another suit, MCCC E1559 of 2022, arising, according to the Defendant, from the same accident and involving the Defendant and Eyre Motors Limited as a Third Party. The possibility of inconsistent findings arising from parallel suits concerning the same occurrence is a legitimate case-management consideration. Kenyan courts have recognised that consolidation may be appropriate where related proceedings raise common questions and separate determination creates a real risk of inconsistent outcomes. 11. Against those considerations is the Plaintiff’s legitimate interest in finality. This suit was filed in 2022 and ought not to be permitted to continue indefinitely. The Court therefore agrees with the Plaintiff that any indulgence extended to the Defendant must be accompanied by firm case-management directions. 12. On balance, I am satisfied that the prejudice likely to be suffered by the Defendant if he is permanently denied an opportunity to call his evidence is greater than the prejudice which the Plaintiff will suffer if the defence is reopened subject to strict timelines and an appropriate order as to costs. 13. The Plaintiff’s prejudice is primarily delay and additional expense. Those can, to a substantial degree, be controlled through strict directions and compensated by costs. The prejudice to the Defendant arising from complete exclusion of his evidence may, on the other hand, directly affect determination of liability and cannot readily be cured after judgment. 14. I therefore find that sufficient cause has been demonstrated to justify reopening the defence case. Whether the entire hearing should commence de novo 1. The Defendant has sought reopening of the case and, in parts of the application and submissions, refers to a hearing de novo. I am not persuaded that justice requires the entire trial to commence afresh. 2. There has been no demonstration that the evidence already taken from the Plaintiff is defective, unavailable for consideration, or that the Defendant was deprived of the opportunity to participate in its reception. Indeed, the Plaintiff maintains that the Defendant has participated in this suit from 2022. 3. A complete rehearing would unnecessarily discard proceedings already validly conducted and impose additional expense and delay upon the Plaintiff. 4. The proportionate remedy is therefore to reopen the matter from the point at which the defence case was closed, rather than nullifying the evidence already recorded. 5. Accordingly, the prayer for a full hearing de novo is declined. The Plaintiff’s evidence shall remain on record. The reopening shall be limited to allowing the defence to present its case, subject to determination of the outstanding procedural questions concerning the proposed Third Party. The Third-Party application 1. The Defendant’s submissions invite this Court to allow the Chamber Summons dated/filed on 8th November 2025 and thereby join Eyre Motors Limited as a Third Party. 2. That substantive relief is not one of the prayers properly presented for determination in the Notice of Motion dated 29th April 2026. More importantly, the Chamber Summons is a distinct application which must be considered on its own pleadings, evidence, response, if any, and applicable law. 3. Written submissions cannot take the place of a substantive application or enlarge prayers beyond those placed before the Court for determination. I therefore decline to determine the merits of the Chamber Summons within this ruling. 4. However, given that the application is said to have been filed as early as 8th November 2025, served upon the proposed Third Party and brought to the Court’s attention on 23rd April 2026, it ought now to be dealt with expeditiously and before the reopened defence hearing proceeds. Transfer and consolidation 1. The Defendant further asks that the present suit be transferred to the court presided over by Hon. Yalwala and consolidated with MCCC E1559 of 2022. I accept the general proposition advanced by the Defendant that consolidation is principally a case-management device intended to promote efficient and proportionate determination of related proceedings and to save costs, time and duplication of judicial effort. 2. The circumstances disclosed here make the question of consolidation worthy of serious consideration. The two proceedings are said to arise from the same accident; Stanley Nugi Kiguru is a party in both; and Eyre Motors Limited is already a Third Party in MCCC E1559 of 2022 while its joinder is sought in this suit. Those features raise a legitimate possibility of overlapping evidence and findings on liability. 3. Nevertheless, the Court must distinguish consolidation from transfer or reallocation of a case to a particular judicial officer. 4. Section 18 of the Civil Procedure Act vests the High Court with the statutory power to withdraw and transfer suits from one subordinate court to another. The provision also allows the transferee court, subject to directions, either to retry the suit or proceed from the stage reached before transfer. 5. In the present case, both matters are described as suits within the Chief Magistrate’s Court at Mombasa. To the extent that what is sought is internal reallocation of one file from one judicial officer to another within the same station for purposes of case management and possible consolidation, that question should be dealt with through the proper administrative and judicial allocation mechanisms of the station. It would not be appropriate in this ruling to purport simply to assign the suit to a specifically named judicial officer. 6. Further, before a final determination is made on consolidation, the status of the proposed Third Party in this suit ought to be clarified through determination of the pending Chamber Summons. 7. I therefore decline the prayer for transfer to Hon. Yalwala in the form in which it is sought. 8. I will, however, direct that upon determination of the Chamber Summons concerning Eyre Motors Limited, this file and MCCC E1559 of 2022 be placed before the Chief Magistrate/Head of Station, Mombasa Law Courts, for appropriate administrative directions on allocation and, where procedurally appropriate, placement before a competent court for determination of the question of consolidation. 9. That course preserves the Applicant’s legitimate concern regarding inconsistent outcomes without this Court exceeding the proper limits of case allocation. Plaintiff’s reliance on Article 50(2)(e) 1. The Plaintiff invoked Article 50(2)(e) in support of expeditious disposal of the case. Strictly speaking, Article 50(2), including Article 50(2)(e), addresses the rights of an accused person in a criminal trial. The applicable constitutional guarantee governing a civil dispute is principally Article 50(1), while Article 159(2)(b) embodies the broader constitutional principle that justice shall not be delayed. 2. That technical distinction does not, however, diminish the substance of the Plaintiff’s concern. She is entitled to have her civil claim determined fairly and without unnecessary delay. It is for that reason that the reopening granted herein will be tightly controlled. Costs 1. Costs are discretionary. Although the Defendant has succeeded substantially in obtaining reopening of the defence, it was the Defendant’s inability to proceed with his witness on 23rd April 2026 that necessitated the present application and occasioned additional expense to the Plaintiff. 2. Fairness therefore requires that the Plaintiff should not bear those additional costs merely because the Court has exercised its discretion in favour of allowing the Defendant another opportunity to present his evidence. 3. I consequently award the costs of the present application to the Plaintiff/Respondent, notwithstanding the limited reopening granted to the Defendant. Disposition 1. In the result, the Notice of Motion dated 29th April 2026 succeeds only in part, and I make the following orders: 2. The Defendant’s case is hereby reopened and the order closing the defence case on 23rd April 2026 is set aside to that limited extent. 3. The prayer that the entire suit be heard de novo is declined. All evidence already properly recorded shall remain part of the court record. 4. The directions previously issued for final submissions following closure of the defence case are hereby set aside to the extent necessary to facilitate the reopened defence hearing. 5. The Court makes no determination in this ruling on the merits of the Chamber Summons dated/filed on 8th November 2025 seeking joinder of Eyre Motors Limited as Third Party. The said Chamber Summons shall be placed before the Court for directions and expeditious hearing and determination before the reopened defence hearing proceeds. 6. Upon determination of the Third-Party application, MCCC E1558 of 2022 and MCCC E1559 of 2022 appropriate administrative directions concerning allocation and the proposed consolidation of the two suits shall be determined. 7. The prayer seeking direct transfer of this suit to the court presided over by Hon. Yalwala is therefore declined in that form, without prejudice to such administrative allocation or judicial directions as may subsequently be properly made. 8. If, following those directions, the suits are not consolidated, the Defendant shall avail all his witnesses on the date fixed for the reopened defence hearing and shall proceed without further adjournment, save only for exceptional cause demonstrated to the satisfaction of the Court. The matter shall thereafter proceed to submissions and determination on an expedited basis. 9. Costs of the Notice of Motion dated 29th April 2026 are awarded to the Plaintiff/Respondent. Those shall be the orders of the Court. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**