Matu & another v Odha & 2 others

The Appellant failed to secure the specied bank statements at time of ling the amended plaint. The Appellant orally called for time to secure the bank statements prior to hearing of plaintis' case on 26.5.2025 which was disallowed. The Appellant formally led an application dated 28.5.2025 to reopen the plainti's case to introduce the bank statements as exhibits which application was rejected by the Trial Magistrate on grounds that the suit was led in 2020 hence determination of disputes has to be expedited, litigation has to come to an end and Appellant(s) had a latitude to le the documents within his reach but failed to comply despite being accorded a chance to be heard. 3. Being aggrieved by the Ruling of learned Trial Magistrate the Appellant led a memorandum of appeal dated 21.7.2025 citing several grounds thereby urged the court to allow the appeal and accord them a chance to prove their case on merit as against the Respondents. Directions of the Court: 4. The court, by consent of the parties directed that the Appeal be canvassed by way of written submissions. The Appellants and Respondents complied on the 20.7.2026 and 10.8.2026 respectively. Appellants’ Submissions: 5. The Appellants contended that the learned trial magistrate erred in law by refusing to reopen the Appellant’s case contrary to the principles allowing for admission of new evidence as laid out in the case of Ladd v Marshall [1954] 1 WLR 1489. 6. The Appellant(s) submitted that the trial magistrate failed to exercise judicial discretion bestowed upon her judiciously to prevent an injustice being occasioned to Appellant by declining to allow for admission of additional evidence post case management conference citing the case of Shah v Mbogo [1967] EA 116 and Order 18 Rule 10 of the Civil Procedure Rules 2010 that grants the court discretion to recall and examine witnesses at any stage of proceedings. 7. The Appellants urged that the bank statements are crucial to proving their claim against the Respondents hence their exclusion undermine their right to a fair hearing as enshrined in article 50 and 159 of the constitution of Kenya 2010. 8. The Appellant argued that the learned trial magistrate erred in law by declining his application to reopen the case emphasizing that the evidence sought to be introduced is material and could not have been obtained with reasonable diligence before hearing citing the case of Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others, and D. T. Dobie & Company Kenya Ltd v Joseph Mbaria Muchina, CA No. 37 of 1978. 9. The Appellant urged the court to allow the appeal, reopen the plainti's case in the magistrates' court for further hearing and production of additional documents in the interest of justice. Respondents’ Submissions: 10. The Respondents argued that the appeal is devoid of merit and should be dismissed with costs as the Appellants demonstrated no reasonable cause for failing to le the bank statements then in their possession since 2021 despite numerous opportunities granted to comply citing the case of Bemis Limited v Archiodiocese of Nairobi Registered Trustees & 4 Others [2023] KEELC 18984 (KLR). 11. The Respondents urged the Appellant has been indolent in compliance with court orders despite several opportunities being granted hence not deserving of courts’ discretion to interfere with the court’s decision dated 18.7.2025 citing the case of Mbogo & Another v Shah [1968] EA 93 whose principle is reinforced by United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898, which holds that appellate courts should not interfere with the trial court's decision merely because they would have to. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5396/eng@2026-08-31 2

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12. The Respondents contended that the right to a fair hearing neither entitles a party to disregard procedural directions nor override the objective of expeditious and fair resolution of disputes as provided for in Section 1A and 1B of the Civil Procedure Act, 2010.The Respondents argued that payment of costs is not appropriate remedy for loss or prejudice they are likely to suer hence the appeal should be dismissed with costs. Issues for determination. 13. Having considered the entire record of appeal, written submissions of the Appellants and Respondents on record the following issues arose for determination: 1. Whether the Trial Court exercised its judicial discretion judiciously in declining to reopen the Appellants’ case and admit additional evidence. 2. Whether substantive justice overrides compliance with procedural rules. 3. Who to bear costs of the appeal? Analysis and Determination: 14. Section 3A of the Civil Procedure Act 2010 provides that nothing in this Act shall limit or otherwise aect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. It is trite that exercise of Judicial discretion is to prevent an injustice or hardship arising from inexcusable delay, mistake, inadvertence rather than reward rigidity as stated in the case of Shah v Mbogo (1979) EA116. 15. The supreme court in Mahamud v Mohamad & 3 others (petition 7 & 9) of 2018 (consolidated) (2018) KESC 62 KLR rearmed that the right to a fair hearing under article 50 of the constitution of Kenya 2010 includes the right to adduce evidence proper and adequate to support a party’s case. In the case of Samuel kiti lewa v Housing Finance Company limited & another (2015) eKLR, it was stated that judicial discretion to reopen a case and admit additional evidence must be exercised, judiciously to avoid occasioning embarrassment or prejudice to the opposite party. 16. It is trite that reopening a case is an extreme measure and should only be allowed sparingly and with the greatest of care as restated in the case of Pirani & 3 others v Al Busaidy (As trustee of Seif Bin Salini Trust) (Environment & Land Case E127 of 2022) [2024] KEELC 4680 (KLR). 17. From the cited decisions a court of law retains the unfettered discretion to allow for extension of time to le and admit additional documents and evidence from witnesses at any stage of proceedings prior to delivery of judgment provided it is exercised judiciously to avoid occasioning any prejudice to respondents and costs can adequately compensate the Respondent. 18. In the case of Mzee Wanje & 93 others v A. K. Sakwa & others (1982-1988)1KAR, it was held that a court while exercising its discretion to reopen a case and admit additional evidence and/or witnesses has to be guided by the principles as follows: 19. (a) It must be shown that the additional evidence could not be obtained with reasonable diligence for use at the trial. (b) The evidence must be such that if given it would probably have an important inuence on the result of the case though it need not be decisive (c) The evidence must be such as it presumably. It is obvious from the cited decision that a case can be reopened to allow for admission of new documents or evidence discovered in the course of hearing that were not in possession of the Applicant, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5396/eng@2026-08-31 3

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recalling a witness to produce new evidence or additional witness to prove a fact so long as the opposing party is not embarrassed or prejudiced, meant for lling in gaps in evidence of the applicant, relevant in proving the issue in dispute and application is made without unreasonable and unexplained delay. 20. The Appellants in this case led the suit against the Respondents on 23.7.2020 though granted leave on 23rd February 2025 to le their amended plaint, written statements and further documentations with corresponding leave to the Respondents to put in their documentations and matter set for hearing on the 26th of May 2025. It is on record on 26.5.2025 the Appellant called for adjournment to le crucial bank statements which he discovered was not led during pretrial conference though opposed by the Respondents and declined by the learned trial magistrate hence plainti/appellant testied and closed their case. 21. The learned trial magistrate in declining the adjournment for ling of the bank statements noted that all parties ought to have complied with directions given on 23.2.2025. Furthermore, the learned trial magistrate noted the age of the matter since its inception and lapses on the part of the Appellant in derailing expeditious disposal of the matter. 22. A careful scrutiny of the bank statements intended for admission as further documents for proof of funds dispatched to respondents by Appellants in the botched transaction depict dates of issue as follows: (a) ABSA Bank - issue date - 14th September 2021, 16th September 2021 and 21st September 2021. (b) National Bank – statement of date - 25th May 2021. 23. From the above analysis the only bank statements that can be presumed to have been in possession of the Appellant pre 23.2.2025 are the bank statements from Absa Bank limited though the date stamps are blurred (not visible). The bank statements from National Bank limited, apart from the statement date being 25.5.2021, is not indicating when the statement was called for or received by the Appellants thereby creating doubt as to whether it was called for or received prior to or after 23.2.2025 by Appellant. 24. It is trite that the burden of proof in civil matters is on a balance of probabilities though the Plaintis/ Appellants herein bear the burden of proof in accord with sections 107 and 109 of Evidence Act. The Appellants did not prove with certainty when the bank statements from National bank limited was supplied to them at close of hearing the application dated 28.5.2025 before the trial magistrate thereby creating doubt whether they had possession of the same or not as at 23.2025 or 25.5.2021. 25. The Appellant urged that as at 23.2.2025 the bank statements were not in their possession. The cardinal principle in litigation is that a case should be decided on merit. worth noting is the fact that the matter is at defence stage at the magistrate’s court. should the appeal be allowed the respondents have a chance to cross examine the Appellants on the additional documents sought to be admitted as evidence on record. The Respondents will have a chance to amend their statement of witnesses, defence, le further witnesses’ statements or call additional witnesses. The Respondents can be compensated with costs too. 26. This court appreciates the observation of the learned trial magistrate while dismissing the application dated 28.5.2025 on 18.7.2025 that litigation should come to an end having taken into consideration the duration taken to determine the matter since 23.7.2020 when the suit led in court. The court equally appreciates the essence of compliance with pretrial conference as a measure to aid orderly and expeditious administration of justice to litigants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5396/eng@2026-08-31 4

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27. The Appellants in paragraph 4 of the Supplementary Adavit dated 10.6.2025 argued that the bank statements are meant to corroborate the payments pleaded in the Amended Plaint dated 27th January 2025. Shutting out the bank documents(statements) from the arena of litigation amounts to denying the Appellants the right to a fair trial considering that the application was made prior to Appellant's testimony on oath and immediately after testifying and closing their case but pre defence case being heard. All circumstances considered, this is a case necessitating grant of benet of doubt in favor of the Appellants purposely to fastrack access to justice to both parties in the spirit of article 2, 47, 50 and 159 of the constitution of Kenya 2010 having been persuaded by the reasoning of Sila Munyao J as He then was in the case of Momanyi and Another v Ongwae & 3 others (2024) eKLR. The learned trial magistrate therefore erred in law when she exercised her discretion in declining the Applicants/ Appellants' application for leave to le additional documents, reopen the case and recall plainti/ appellant for further examination. 28. The Respondents averred the Appellant(s) are out to patch up the gaps in their case hence the prejudice they will suer thereby undermining the overriding objective of disposal of matters in an expeditious, proportionate and aordable manner as provided in sections 1A and B of the Civil Procedure Act, 2010 and Articles 159(2) of the constitution of kenya 2010. It is not disputed that the defense case in the trial magistrate’s court is pending hearing and determination pursuant to a court order dated 24.11.2025 that stayed proceedings before the magistrates’ court in Milimani MCELC/40/2020 pending hearing and determination of Milimani ELC Appeal number E132/2025. The Additional bank documents (statements) if permitted as part of the record are subject to scrutiny by the respondents through further cross examination of Appellant or a witness called to produce them as evidence on record. The Respondents have an opportunity to call a witness or witnesses to rebut the contents of the intended bank statements to be admitted and produced as evidence on record too. 29. Furthermore, the prejudice likely to be suered by the Respondents could be mitigated by award of compensatory costs payable to respondents within a given timeline dictated by the court. In the circumstances the trial magistrate erred in law when she declined the application for leave to adduce additional documents by Appellants on the basis that Appellants failed to comply with procedural directions thereby denying the Appellants the right to a fair hearing of their case on merit purposely to adduce evidence to determine the issue in dispute as against the Respondents. The appeal is merited and succeeds on this ground too. 30. Costs follow events though awarded at the discretion of the court based on circumstances of each case as rearmed in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR). The matter is pending defence hearing and determination at the magistrates’ court .in the circumstances costs of the appeal shall abide by the outcome of the main suit at the magistrates. Final Orders; 31. Accordingly, The Appeal is hereby allowed on following terms: 1. The ruling and/or order of the Trial Magistrate delivered and/or dated the 18th of July 2025, dismissing the Appellant’s application dated 28.5.2025 is set aside. 2. The Appellant’s case in Milimani MCELC/40/2020 is reopened to the extent of ling and producing the bank statements obtained by Appellant after ling of amended plaint. 3. The Appellant (Plaintis in Milimani MCELC/40/2020) to le and serve the bank statements and further witness statements upon the Respondents within 14 days from the date of judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5396/eng@2026-08-31 5

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4. The Respondents (Defendants in Milimani MCELC/40/2020 are granted corresponding leave to le and serve any additional documents, witness statements in rebuttal upon the Appellant/Plainti within 14 days from the date of service. 5. The Respondents are at liberty to cross examine any witness(es) recalled or called by the appellant/plainti to produce the bank statements and produce any evidence in rebuttal where necessary. 6. The Original court le (Milimani MCELC/40/2020) be placed before the Trial Magistrate on the 30.9.2026 for fastracking the xing of a hearing date and disposal of the matter. 7. The Cost of the Application dated 28.5.2025 and Appeal to abide by out of the main suit in the Magistrates’ court. Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY AT VOI THIS 31ST DAY OF AUGUST 2026 HON. J. ORWA JUDGE In the presence of: Mr. Urvyu For the Appellants Mr. Maingi For the Respondents. David: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5396/eng@2026-08-31 6

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