Murungi v Cretum Properties Limited

evidence by such expert is so vital in conrming the validity of the Agreement dated December 14, 2012 as she relies on the same while the Defendant challenges it. 6. The Plainti asserts that the evidence of an expert will assist the Court in determining the issues in controversy surrounding the documentary evidence already presented by the Plainti and dispensing justice to the parties, that the reopening of the case would not prejudice the Defendant who will subject the expert to cross examination. 7. The Applicant contends that the additional expert witness would not alter the character of the case and will not occasion miscarriage of justice. 8. The Application was opposed by the Defendant. Vide the Replying Adavit of the Mburu Mungai sworn on November 2, 2022. 9. The Defendant contends that there is no valid reason to reopen the case as the Plainti has been aware of the Defendant’s position to the Agreement since the Defence was led. 10. It is the Defendant’s position that the Plainti has been unable to trace the Agreement as there was no such an agreement and it is clear that the application seeks to panel beat the Plainti’s case after strong cross examination by their Counsel. 11. The Defendant insists that there was never a second agreement, neither had there been proof of payment of balance of the purchase price thus opposed the Application. 12. Parties led submissions; the Plainti’s dated November 7, 2022 while the Defendant’s December 14, 2022. The Plainti largely relied on the provisions of Order 18 Rule 10 and the cases of Raindrops Limited vs County of Kilifi, Victoria Kiminta vs Gladys Kiminta and Andrew Muganda and Others vs China Dalian International Group while the Defendant relied largely on Gulf Energy Limited vs Est Africa Safari Air Express Limited and David Muthami Muthee vs Estate of James Titus Wambua and 4 Others. I have considered all the above authorities cited. 13. The power to recall and examine a witness is vested in the Court under Order 18, Rule 10 of the Civil Procedure Rules as follows: The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks t. 14. The foregoing provisions however relate to a witness who had already testied and the recall serves the purpose of oering clarication on what the witness may have testied on or adduced. In this case, it is clear that the witness who is sought to be introduced is a new one. 15. The case of Gulf Energy Limited v East African Safari Air Express Limited [2020] eKLR relied upon by the Defendant related to recall of witnesses who had previously testied while Joseph Ndungu Kamau v John Njihia [2017] eKLR relates to the adducing of additional evidence whether both the Plainti and Defence cases had closed. A similar fate meets some of the authorities relied on by the Plainti, particularly the Raindrops Limited and that of Andrew Muganda (supra). I have nevertheless taken the necessary persuasion therefrom. 16. There is no doubt that this Court has the discretion to allow the re-opening of a case in appropriate circumstances. This discretion is exercised judiciously and sparingly with a view to doing justice between the parties. I am careful not to allow this be a mechanism of delay or abuse of this Court’s processes. Re-opening of a case is an equitable remedy. Therefore, he who seeks this remedy must act equitably and must approach the court with clean hands. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15766/eng@2023-02-22 2

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17. In this case, the Plainti has disclosed that she did not manage to trace the Agreement of December 14, 2012, and has therefore decided to call an expert to buttress her case. She has also disclosed the nature of the evidence. 18. This court is of the view that I order to meet the ends of justice it is essential that the court allows the parties an opportunity to fully prosecute their case. I am not persuaded that the reopening of the case will visit any prejudices to the Defendant. In any event, the Defendant will have an opportunity to cross examine the expert witness. The value of the evidence to be tendered as proposed will be tested during the hearing of the case. 19. Consequently, the Plainti’s Application is allowed to the extent that the Plainti shall within 30 days’ le and serve a copy of the Expert witness report or statement. The Defendant shall be at liberty to le and serve within 30 days of service any documents to be relied upon to counter this evidence. Thereafter the witness shall be presented for a hearing limited only to the validity of the agreement. 20. The costs of the application to be in the cause. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF FEBRUARY 2023. JUDY OMANGE JUDGE In the presence of: Mr. Kamwami for the Plainti Steve - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15766/eng@2023-02-22 3

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