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High CourtDismissedApplication dated 24.4.19 in Originating Summons dated 19.10.18

FMS v MAS

High Court of Kenya
5 May 2020
MTM. Thande
1,831 words in judgment
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The bottom line

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Introducing new evidence late in court is risky; if you possessed it earlier, you should have filed it when the opportunity arose.

What this practically means

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Executive summary

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By an application dated 24.4.19 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, FMS, the Applicant in an Originating Summons against MAS seeking declarations that certain properties are matrimonial property and a 50% share, sought leave to adduce additional documentary evidence - cheque counterfoils, children's diaries, school reports and pictures - and to admit her supplementary affidavit sworn on 24.4.19. The matter had proceeded by written submissions, with both parties having filed them as directed, and only highlighting and judgment remained. The Applicant explained that the bank could not trace the actual cheques and that the Respondent had raised new issues in his submissions not contained in his replying affidavit. The Respondent opposed, contending the evidence was available all along, that the Applicant had ample time including leave to file a further affidavit, and that the application was an afterthought causing delay and prejudice. The Court, per M. Thande J, held that no evidence showed the additional material was not in the Applicant's possession and she ought to have filed it earlier. Applying the principle that submissions are not pleadings and new issues raised in submissions are best ignored, the Court held the proper remedy was to ask the Court to disregard such issues, not to file rebuttal evidence. Admitting the affidavit after sight of the Respondent's submissions would prejudice him and abuse the court process. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether late additional evidence should be admitted after parties had filed submissions

Holding

The application was dismissed; the evidence was available to the Applicant throughout and admitting it would prejudice the Respondent and delay the concluded matter

Reasoning

The Court found no evidence that the cheque counterfoils, school records and photographs were not in the Applicant's possession; she could have filed them with the OS or the further affidavit she was granted leave to file. Admitting the affidavit after sight of the Respondent's submissions would greatly prejudice him, and the application only served to delay a matter that was more or less concluded.

p. 2
02

Whether new issues raised in submissions can be met by filing further evidence

Holding

No; submissions are not pleadings and new issues raised in submissions are best ignored

Reasoning

Relying on Republic vs. Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited, the Court held that the Applicant's remedy against issues raised for the first time in the Respondent's submissions was to ask the Court to disregard them, not to seek to file additional evidence to rebut them.

p. 2

Legal principles established

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  • Submissions are not pleadings and new issues raised in submissions cannot be countered by filing additional evidence; the remedy is to ask the Court to disregard them
  • The Court's wide discretion under Section 3A must be exercised judicially to avoid abuse of court process and to balance the interests of the parties

Court orders

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  1. 1.The Application dated 24.4.19 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A(1)
  • Civil Procedure ActSection 1A(2)
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 2, Rule 13
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Republic vs. Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited & another [2014] Korir, J.
    [2014] eKLR

    Submissions are not pleadings; new issues raised by way of submissions are best ignored

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "FMS v MAS", Case Analysis (2020). Application dated 24.4.19 in Originating Summons dated 19.10.18. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.