Njoroge & 2 others v Musa Njuguna t/a Charismata Ministries Network & 2 others

4. This application naturally disconcerted the defendant’s counsel Mr Githui who, in response, pointed out that a concession having been made that all the plainti’s witnesses had been exhausted, there is no certainty as to how counsel for the plaintis would proceed in the event the application was allowed as prayed, and that, there is a risk of having to recall all the witnesses again. 5. The defendants, said Mr Githui would be prejudiced in that event. Mr Githui pointed out that the defendants had proceeded with the Plainti’s case on the basis of the theme of lack of capacity, hence more prejudice would be caused if the orders were granted. 6. I have anxiously considered the application made by Ms Wachira and the response made by Mr Githui at length. This court must in all litigation balance between the rights of the plaintis and those of the defendants when an application such as the one currently under consideration has been made, for it is a court of justice. 7. On the one hand there is a plainti or plaintis who have had a case pending in this court since it was led on September 1, 2002 that is about 18 years ago and who, it is to be presumed, have been anxious to have it expeditiously concluded. Those plaintis have also had 3 years from November 6, 2019 when PW1 last testied to prepare further for the hearing and conclusion of their case, including applying for leave to le new documents in the matter. They never made such an attempt. 8. On the other hand, after PW1 testied the defendants sought leave by a formal application to le their further documents in 2020. The defendants action never spurred the plaintis into taking a harder look at their own documents or correcting any gaps that may have been noted. 9. This is an adversarial situation that the litigants herein nd themselves. Often the court nds itself between a rock and a hard place in making a decision on such an application as has been made by Ms Wachira for the defendants, for in its granting may lie much prejudice to one party – defendant who may have agreed to participate in the hearing on the basis, as in this case, of the perceived state of pleadings and evidence on record and no more. I do not agree with Ms Wachira that the grant of the application would not prejudice the defendants, for as Mr Githui asks on the defendant’s behalf, how barring a consent, would those new documents be dealt with if not by recalling the plaintis’ witnesses? 10. I do not also nd that, given the three-year period that has lapsed since the last substantive hearing of the suit, the plaintis have given sucient explanation for their delay in ling those documents that Ms Wachira now seeks to le. 11. As stated earlier, this is an old case and all the plaintis’ witnesses having testied only more delay will ensue from the granting of Ms Wachira’s application. 12. Justice must be served expeditiously as envisaged by article 159(1) of the Constitution and that article refers to justice for all including the defendants herein, who had two witnesses ready to testify today. I nd that owing to the delay that may result in the disposal of this case if the application is granted, the application should not be granted. I nd that it has no merit and I hereby decline to grant the leave sought. DATED, SIGNED AND ISSUED AT NAKURU IN OPEN COURT ON THIS 12TH DAY OF OCTOBER, 2022. MWANGI NJOROGE JUDGE, ELC, NAKURU https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13639/eng@2022-10-12 2

page 2 of 2