Kimani v Equity Group Holding Ltd & another (Environment and Land Case E211 of 2023) [2026] KEELC 3603 (KLR)

d. 2. That Costs be in the Cause. The application is based on the grounds appearing on its face together with the supporting afidavit of the Applicant sworn on even date. The Applicant’s Case 3. The Applicant contends that his case should be reopened to enable him to file a further list of documents in order to assist the court in making a fair decision. He averred that on 23rd September 2025, during cross-examination, he sought to rely on certain documents in support of his case, only to find that his advocate had not filed them. 4. He further averred that it was only after engaging his advocate during the hearing that it became clear that the documents had inadvertently not been filed, despite having previously supplied them to his advocate. He further stated that the mix-up may have occurred during the compilation of the documents, and that his advanced age posed challenges in travelling to his advocates' ofices to confirm that the filed documents corresponded with those he had supplied. 5. He asserted that the error was caused by his advocate during the photocopying process, and that the documents in question do not constitute new evidence. He contended that his advocate’s mistake should not be visited upon him. He further contended that the Defendant would not be prejudiced, as he would have an equal opportunity to file documents and cross-examine him on the same. He further asserted that he sought leave to call Emmanuel Kenga to produce and testify on a report dated 30th August 2025 prepared by him, since the Defendants had not yet commenced prosecuting their respective cases and would therefore have the opportunity to call their own witnesses in rebuttal. 6. He argued that he would be prejudiced if the application was not granted, as his claim would be adversely afiected by his inability to rely on documents that were already in his possession and had been duly shared with his advocates. He asserted that the application was made in good faith and should be allowed in the interest of justice. The 1St Defendant’s Case 7. The 1st Defendant filed a replying afidavit sworn by its Assistant Manager, Legal Services, Samuel Wamaitha, on 2nd December 2025, in opposition to the application. The deponent argued that the application is a blatant attempt to fill gaps in his case discovered during cross-examination. He asserted that the Court record shows that the matter came up for pre-trial conference on four separate occasions, during which the parties took directions and undertook discovery, with each party required to file all requisite documents in proof of their case. 8. He asserted that during the pre-trial conference held on 8th April 2024, the Plaintifi's advocate was granted leave to file and serve an Amended Plaint together with a supplementary list and bundle of documents, which the Plaintifi duly filed on 21st May 2024. He further averred that at the pre-trial conference held on 24th September 2024, the Plaintifi's advocate informed the Court that all necessary documents had been filed and there were no further documents he wished to produce or rely upon, after which the matter was certified ready for hearing. 9. He argued that the 1st Defendant filed its Statement of Defence based on the case presented by the Plaintifi. He maintained that the application seeks to change the Plaintifi's case to the detriment of the 1st Defendant, which had already filed its defence and witness statement and had identified weaknesses in the Plaintifi's case during cross-examination on 23rd September 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 2

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10. He asserted that the application was filed after the Plaintifi realised during cross-examination that he was unable to prove his case. He described the application as a choreographed scheme to patch up gaps that emerged during that hearing. 11. The deponent argued that it is unprocedural and prejudicial to introduce a new witness at this stage, as the Defendants had structured their defence, cross-examination strategy, and case preparation based on the pleadings and evidence previously disclosed. 12. He contended that the proposed witness was never part of the case, thus denying the Defendants a reasonable opportunity to investigate, verify, or respond to his evidence, thereby creating an inequality of arms and undermining the fairness of the trial. He asserted that the evidence and the proposed witness were available to the Plaintifi, and that no adequate explanation had been ofiered for the failure to file the said evidence when leave was initially granted, or to call the witness prior to the hearing. 13. He argued that the documentary evidence the Plaintifi now sought to introduce was irrelevant to his case because it merely demonstrated the existence of a personal savings account and did not serve as proof of payment of the purchase price for the suit properties directly to Equity Building Society. He asserted that the Plaintifi's explanation that his advocate inadvertently failed to file the documents does not constitute a valid excuse, noting that the Plaintifi had sworn a verifying afidavit confirming the truth of his pleadings. It was argued that it is well-established law that a case belongs to a litigant, not to his advocate. 14. He argued that the instant application is an abuse of the Court process, was brought in bad faith, and should be dismissed with costs. 15. The application was canvassed by way of written submissions The Plaintifi/applicant’s Submissions 16. The Plaintifi filed his submissions dated 28th January 2024. 17. On behalf of the Plaintifi, Counsel submitted that the Court should exercise its discretion in favour of the Plaintifi and allow the application to reopen the case and file further documents. Counsel cited Joseph Ndungu Kamau v John Njihia [2017] eKLR, where it was held that in determining such an application, the Court must enquire why the evidence was not presented before the close of the hearing, and that reopening would not ordinarily be allowed where the failure was deliberate. 18. Further reliance was placed on Esther Mukulu Mutuku v Rahab M'kiama & 2 others [2022] eKLR, where the Court adopted the words of Apaloo JA in Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR, emphasising that blunders will continue to be made and that a party should not sufier the penalty of having his case determined otherwise than on its merits merely because a mistake has occurred. 19. Regarding the issue of recalling witnesses and filing further documents, Counsel relied on Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adundo [2022] eKLR, where the Court held that under Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act nothing prevents the Court from exercising its discretion to allow parties to call additional witnesses or file further documents even after the matter has been scheduled for hearing to ensure that each party is afiorded a fair hearing as guaranteed under Article 50(1) of the Constitution. 20. Counsel also cited Eunice Jacqueline Chebukwa Wanjala v Kenya Commercial Bank Ltd & another [2021] eKLR, where the court, applying principles from Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 others [2018] eKLR, allowed an application for leave to file additional https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 3

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documents on the grounds that a party should be allowed to prosecute his case to his satisfaction, and that producing additional documents would not prejudice the defence. 21. Counsel submitted that the documents the Plaintifi wished to introduce were inadvertently omitted by the advocate handling the matter during compilation. Counsel argued that this oversight was compounded by the Plaintifi's advanced age and the dificulties he faced in travelling to verify the filed documents. Counsel contended that the mistake of an advocate should not be visited upon the Plaintifi. It was further submitted that the Defendants would not be prejudiced, as they would have an equal opportunity to file documents and to cross-examine the Plaintifi and his witness on the same. The 1St Defendant’s Submissions 22. The 1st Defendant filed its submissions dated 4th February 2026. 23. On behalf of the 1st Defendant, Counsel submitted that the Plaintifi's application is a blatant attempt to fill gaps in his case discovered during cross-examination. Counsel submitted that it is trite that a party seeking to introduce new evidence after closing its case must demonstrate suficient reasons justifying the grant of such leave. 24. Counsel relied on Susan Wavinya Mutahi v Isaac Njoroge & another [2020] eKLR, where the Court outlined the principles governing applications to re-open a case, namely: that the jurisdiction is discretionary and must be exercised judiciously; that re-opening will not be allowed where it is intended to fill gaps in the applicant's evidence; that inordinate and unexplained delay defeats such an application; that the applicant must demonstrate that the evidence could not have been obtained with reasonable diligence at the time of hearing; that the evidence must be likely to have an important infiuence on the result of the case; and that the evidence must be apparently credible. 25. Counsel further cited Odoyo Osodo v Rael Obara Ojuok & 4 others [2017] eKLR to submit that the Court's discretion to re-open a case must be exercised judiciously and only in favour of an applicant who has demonstrated suficient cause, a threshold that the Plaintifi has failed to meet. 26. Regarding the issue of prejudice, Counsel submitted that granting the application would severely prejudice the 1st defendant, whose entire case strategy and cross-examination are based on the evidence previously disclosed, leaving no opportunity to investigate or prepare a rebuttal to the proposed new witness. This would result in a significant inequality of arms and undermine the fairness of the trial. Counsel relied on Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR, where the Court dismissed a similar application on the grounds that allowing it would amount to permitting the Plaintifi to fill gaps in his evidence, and the unexplained delay in making the application defeated the prayers sought. Additionally, Counsel cited Thomas Kinyua Mbeu v Maurice Ndambuki Kitivo [2022] eKLR, where the Court denied an application to summon a new witness after the conclusion of the case, emphasizing that re-opening should be an extreme measure allowed sparingly and only with suficient cause. 27. Counsel further submitted that the evidence and the proposed witness were at all times available to the Plaintifi, and that no adequate explanation had been provided for the failure to file the documents when leave was initially granted. In particular, Counsel noted that the report the proposed witness was to produce was prepared on 30th August 2025, approximately one month before the hearing date of 23rd September 2025, and that no satisfactory reason had been given for the failure to file it on time. 28. Regarding the relevance of the proposed documents, Counsel submitted that the Equity Building Society Savings Account Passbook and receipts are irrelevant to the Plaintifi's case, as they merely show https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 4

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the existence of a personal savings account and do not constitute proof of payment of the purchase price for the suit properties directly to Equity Building Society. 29. Regarding the issue of the advocate’s error, Counsel relied on Julius Mbaabu Marete v Tom Ayora & 3 others [2018] KEHC 5791 (KLR), where it was held that a Court will not exercise its discretion in favour of a party due to a mistake by its advocates. Advocates must demonstrate genuine and acceptable mistakes rather than outright negligence, with the remedy for professional negligence lying in a claim against the advocate rather than in reopening the proceedings. Counsel further cited Sagala v Bridge International Academies Limited [2024] KEELRC 214 (KLR) to submit that the discretion to reopen proceedings cannot be used to cure every form of negligence or ineptitude by parties. Counsel argued that a party seeking the exercise of discretion must present to the Court evidence in support of their case. 30. In conclusion, Counsel urged the Court to dismiss the application with costs. Analysis And Determination 31. Having considered the application, the respective afidavits, and the rival submissions, the only issue that arises for determination is whether the Applicant is entitled to the orders sought. 32. The principles governing applications for leave to file additional evidence were outlined by the Supreme Court in Attorney General v Zinj Limited [2021] eKLR, as follows: a. The additional evidence must be directly relevant to the matter before the court and be in the interest of justice. b. it must be such that, if given, it would infiuence or impact upon the result of the verdict, although it need not be decisive; c. it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; d. where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; e. the evidence must be credible in the sense that it is capable of belief; f. the additional evidence must not be so voluminous making it dificult or impossible for the other party to respond efiectively; g. whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; h. where the additional evidence discloses a strong prima facie case of willful deception of the Court; i. The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 5

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33. j. a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case; k. the Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation, together with any prejudice that might arise from the additional evidence on the other. The Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) outlined the principles a court should consider when exercising its discretion in an application for an extension of time. “ It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant. This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion: 34. i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; v. Whether there will be any prejudice sufiered by the respondents if the extension is granted; vi. Whether the application has been brought without undue delay; and vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” In the case of Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 1 (KLR), the Supreme Court provided the following guidance regarding whether to admit or reject additional evidence filed outside the stipulated statutory timelines: “ The parties in the petition had a duty to ensure that they complied with their respective timelines, and the court ought to adhere to its own. There must be a fair and level playing field so that no party or the court lost the time that they were entitled to and no extra burden should be imposed on any party or the court as a result of omissions or inadvertence which were foreseeable or could have been avoided. If the further afidavit was small or limited so that the other party was able to respond to it, then the court would be considerate, taking into account all aspects of the matter. However, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 6

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where the new material introduced was so substantial involving not only a further afidavit but massive additional evidence so as to make it dificult or impossible for the other party to respond efiectively, the court would exercise caution and care in the exercise of its discretion to grant leave for the filing of the further afidavit and admission of additional evidence..” 35. The documents intended to be introduced are neither voluminous nor so complex that they would cause any dificulties for the Defendants in responding. They include a Savings Account Passbook with Equity Building Society, payment receipts to the Building Society, and a Forensic Document Examination Report prepared by Emmanuel Kenga, the proposed additional witness. These documents are directly relevant to the Plaintifis' case, specifically whether the Plaintifi obtained a loan from Equity Building Society and whether that loan was subsequently repaid. They are material to the issues in dispute in this suit. 36. The Plaintifi attributes the failure to file the documents to an inadvertent mistake made by his advocate during the photocopying and compilation process. He argued that this was further compounded by his advanced age, which posed challenges in travelling to his advocate's ofices to verify the filed documents against those he had supplied. 37 In Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR the Court held that: “ Blunders will continue to be made from time to time, and it does not follow that because a mistake has been made that a party should sufier the penalty of not having his case determined on its merits. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline” 38. In the matter at hand, the application was made before the close of the Plaintifi's case. The Defendants are yet to commence prosecuting their case. This is a significant factor as the prejudice that might otherwise result from the late introduction of evidence is considerably attenuated where the opposing party has not yet closed its case and retains the full opportunity to respond. 39. The 1st Defendant argues that introducing a new witness and additional documents at this stage would cause it substantial prejudice. However, this Court finds that any prejudice the 1st Defendant might encounter is mitigated by the opportunity to cross-examine the new witness, recall the Plaintifi’s witness who had begun giving evidence for further cross-examination, and submit any supplementary statements and documents in reply. 40. Regarding the interests of justice, Article 159(2)(b) of the Constitution stipulates that justice shall be administered without undue regard to procedural technicalities. The overriding objective under Sections 1A and 1B of the Civil Procedure Act requires this Court to facilitate the just, expeditious, proportionate, and afiordable resolution of dispute. 41. Based on the foregoing, I find that the interests of justice are better served by allowing the Plaintifi to present his case fully, and permitting the court to determine the matter on its merits, rather than shutting out evidence on account of an advocate's oversight. 42. In the end, I find that the Applicant has demonstrated suficient cause to warrant the exercise of this Court's discretion in his favour. The upshot of the foregoing is that I find that the application is merited and is hereby allowed in the following terms: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 7

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a. The Plaintifi's case is hereby reopened. The Plaintifi is granted leave to file and serve a further list of witnesses and list and Bundle of Documents annexed to the application within seven (7) days from the date of this order. b. The Defendants are granted fourteen (14) days from the date of service of the said documents to file any response thereto, including any additional witness statements and documents they may wish to rely upon. c. The Plaintifi is granted leave to call Emmanuel Kenga to produce and testify on the forensic document examination report dated 30th August 2025. d. The Defendants shall have the right to cross-examine the said witness upon his testimony. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 5TH DAY OF JUNE, 2026. ……………………………………. HON. T. MURIGI JUDGE In the presence of: In the absence of the parties Ahmed – Court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3603/eng@2026-06-05 8

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