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MagistrateDismissedNot stated in the judgment· [2026] KEMC 36 (KLR)

Warega & another (Suing as the legal administrator of he Estate of the Late Bethwel Opiyo Warega) v Ndicho & 2 others (Civil Suit 203 of 2021) [2026] KEMC 36 (KLR)

Magistrates' Court
15 January 2026
ANAloyce Peter Ndege
457 words in judgment
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The bottom line

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A Nakuru court refused to let a defendant add new evidence mid-trial, ruling that late filing amounts to litigation by ambush and an abuse of process.

What this practically means

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Executive summary

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The 2nd Defendant/Applicant moved the court by Notice of Motion dated 16/06/2025 under Order 7 Rule 17(1) and (2) of the Civil Procedure Rules, Article 159(2)(d) and (e) of the Constitution, Section 146(4) of the Evidence Act and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking leave to deem its supplementary list of documents and witnesses dated 03/06/2025 as properly on record, to allow its driver and a police officer to give evidence, to have the matter listed for hearing on priority, and for costs in the cause. The application, supported by the affidavit of Carolyne Shavulimo, was opposed by the plaintiff's counsel, Sylvia A. Obura, and both parties filed written submissions. The court noted that the Civil Procedure Rules require parties to file and exchange statements and documents before hearing, that the defendants had participated in pre-trials without objection and never sought an extension of time until after the plaintiff had testified. The magistrate found the defendants' conduct indolent, a deliberate pattern of delay, an affront to the overriding objective and an abuse of process. Since the plaintiff had already testified, allowing the late evidence would let the defendants tailor their evidence to his testimony and litigate by ambush, to his prejudice. The application was dismissed in its entirety with costs to the plaintiff. Judgment delivered at Nakuru on 15 January 2026 by Senior Principal Magistrate Aloyce Peter Ndege.

Key legal issues

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Whether leave should be granted to introduce a supplementary list of documents and witnesses after the plaintiff had testified

Holding

The application was dismissed; the defendants' delay and lack of diligence amounted to an abuse of process and allowing the application would be prejudicial

Reasoning

The Civil Procedure Rules require parties to file and exchange documents and witness statements before hearing. The defendants participated in pre-trials several times without challenge and never sought extension of time until after the plaintiff testified. That conduct showed indolence, a pattern of delay intended to derail expeditious disposal, and fell afoul of the overriding objective. Allowing the application would let the defendants tailor evidence to the plaintiff's testimony and prejudice the plaintiff who had commenced his case.

p. 2

Legal principles established

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  • Parties must file and exchange written statements and documents before hearing begins, and a party who participates in pre-trials without seeking extension of time cannot thereafter introduce further documents and witnesses
  • Parties are not permitted to litigate by ambush; a defendant may not introduce evidence tailored to respond to facts revealed in testimony already given

Court orders

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  1. 1.The 2nd Defendant/Applicant's Notice of Motion dated 16/06/2025 is dismissed
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 7, Rule 17(1) and (2)
  • Civil Procedure RulesOrder 7, Rule 5
  • Civil Procedure RulesOrder 3, Rule 2
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 159(2)(d) and (e)
  • Evidence ActSection 146(4)
  • Civil Procedure ActSections 1A, 1B and 3A
Jurisdiction invoked
Order 7, Rule 17(1) and (2) of the Civil Procedure Rules; Article 159(2)(d) and (e) of the Constitution; Section 146(4) of the Evidence Act; 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, "Warega & another (Suing as the legal administrator of he Estate of the Late Bethwel Opiyo Warega) v Ndicho & 2 others (Civil Suit 203 of 2021) [2026] KEMC 36 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/36/eng@2026-01-15

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