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High CourtDismissed· [2020] KEHC 9162 (KLR)

JAMES TITUS KISIA v VERSUSQUARANTY TRUST BANK BANK LIMITED

High Court of Kenya
21 January 2020
DCD. O. Chepkwony
2,923 words in judgment
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The bottom line

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Courts in Kenya prioritize a fair trial, meaning you cannot introduce new evidence late in a case without the other side knowing about it.

What this practically means

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Executive summary

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The Defendant bank applied by Notice of Motion dated 26th November 2019 for review and setting aside of an order of 29th October 2019 expunging its application dated 28th October 2019, reinstatement of that application, and in the alternative enlargement of the 7-day leave granted on 16th July 2019 to file an application seeking to introduce a supplementary list of documents containing the complete statement of account on the Plaintiff's current account. The Defendant alleged a core banking system migration error (EQUINOX to BASIS, April-July 2014) which credited the Plaintiff's account with an erroneous opening balance, discovered only during a recent internal audit. The Plaintiff opposed, arguing the application failed the Order 45 review threshold, the documents were within the Defendant's knowledge since 2014, the delay was unexplained, and the Plaintiff had already closed his case after two witnesses testified, so admitting the evidence would cause prejudice and amount to trial by ambush. The court framed two issues: whether the application met the threshold for review of the 29th October 2019 orders, and whether the Defendant was entitled to enlargement of time. Holding that disclosure rules under Orders 3 and 7 curb trials by ambush but that the court retains discretion to admit additional evidence where no undue prejudice results, the court found the alleged negotiations explaining the delay were denied and unproven, and that admitting the documents after the Plaintiff closed his case would render the trial unfair under Article 50(1). The application was disallowed; the Defendant was to proceed on the evidence proposed in its defence, with leave to appeal granted.

Key legal issues

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01

Whether the court should review its order expunging the Defendant's application and allow a supplementary list of documents after the Plaintiff closed his case

Holding

The application was disallowed; introducing the documents at that late stage would fundamentally alter the character of the Defendant's case and render the trial unfair to the Plaintiff.

Reasoning

The Plaintiff and his witnesses had testified and closed their case without any contemplation of the new documents and were never cross-examined on them. The alleged reason for the delay (ongoing negotiations) was denied and unsupported by evidence. Allowing the evidence would violate Article 50(1) on fair trial, notwithstanding Article 159(2)(d) on technicalities.

p. 4
02

Whether the Defendant was entitled to enlargement of time from the 7 days' leave granted on 16/7/2019

Holding

No; the delay was unexplained, the alleged negotiations being denied and unproven.

Reasoning

The Defendant failed to comply with the timelines set on 16/7/2019, resulting in the application being expunged. The only explanation offered - ongoing out-of-court negotiations - was denied in toto by the Plaintiff and the Defendant produced no evidence to confirm it, so the interests of justice did not favour extension.

p. 3

Legal principles established

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  • Both plaintiff and defendant must furnish their documentary evidence when filing pleadings; documents may be supplied later only with leave of the court, at least 15 days before the pre-trial conference
  • The court retains a constitutional mandate to disallow evidence not disclosed as contemplated by the rules, since a trial allowing ambush would not be fair
  • The court may nonetheless permit additional evidence where it can be adduced without undue prejudice, weighing factors such as earlier availability of witnesses, discovery of a new document, and the stage of the proceedings

Court orders

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  1. 1.The application by the defendant seeking review to reinstate the application dated 28/10/2019, which sought to introduce the supplementary list of documents, is disallowed
  2. 2.The defendant Bank will proceed on the basis of the evidence it had proposed to tender when it filed its defence
  3. 3.Leave to appeal is granted

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 1A (overriding objective)
  • Civil Procedure RulesOrder 3 Rule 2 and Order 3 Rule 7
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 11 (including Rule 7)
  • Civil Procedure RulesOrder 15
  • Civil Procedure RulesOrder 16
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 50 Rule 6

Cases cited (6)

  • Anthony Konde Fondo & Another –vs- Roselyne Mwanatumu Chimega
    [2019] eKLR

    Principles for judicious exercise of discretion in extension of time and determination without undue regard to technicalities

  • Nicholas Kiptoo Arap Korir Salat-vs- IEBC & 7 Others
    [2014] eKLR

    Underlying principles a court should consider in exercise of discretion in extension of time

  • Kenya Commercial Bank Limited-vs-Ann Kajuju Charles
    [2012] eKLR

    Alternative dispute resolution precepts under Article 159

  • Evan Bwire –vs-Andrew Aginda
    Civil Appeal No. 147 of 2006

    Prejudice of re-hearing where a party has closed its case (cited by Plaintiff)

  • Suleiman Murunga –vs- Nilestar Holdings Ltd & Another
    [2016] eKLR

    Cited by Plaintiff on introduction of evidence not new (cited by party)

  • Raila Odinga & 5 Others vs IEBC & 3 Others
    Petitions Nos. 3, 4 and 5 of 2013 (2013) eKLR

    Declining additional evidence filed outside the contemplation of the rules

Jurisdiction invoked
Inherent review and enlargement-of-time jurisdiction under Order 45 and Order 50 Rule 6 of the Civil Procedure Rules; Article 159(2)(d) and Article 50(1) of the Constitution

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, "JAMES TITUS KISIA v VERSUSQUARANTY TRUST BANK BANK LIMITED", Case Analysis (2020). . Source:

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