Vincent Moseti v Charle Somoke Onsase & another [2017] KEELC 3008 (KLR)

The court adopted the principles in Samuel Kiti Lewa and its own ruling in Odoyo Osodo: reopening must be sought timeously and must not embarrass or prejudice the opposite party or fill gaps in evidence. The plaintiff testified and closed his case; the documents sought to be produced were always in his possession, and neither he nor his successive advocates explained the failure to produce them until the defence hearing. Current counsel came on record in November 2014 and only applied on 19th September 2016. The court found casualness and sloppiness rather than genuine mistake, and held the overriding objective could not come to the aid of such conduct.

The plaintiff argued his deceased former advocate mistakenly filed a list without copies of documents and that counsel's mistake should not be visited on a party. The court accepted that a genuine mistake or error by counsel may be overlooked in the interest of justice, but found none here: the documents were always available, the plaintiff produced what he deemed material (PEx1-4) when he testified, and the application was made only when the lacuna surfaced during the defence hearing. Such inordinate, unexplained delay and casualness disentitle the litigant to the court's discretion.