Omwando v Mageto & 3 others

b. THAT this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to recall and cross-examine the witnesses who testified during the hearing conducted in his absence. c. THAT this Honourable Court be pleased to allow the Plaintiff/Applicant to present additional witnesses in support of his case. d. THAT the Plaintiff/Applicant be granted leave to call three additional witnesses in addition to the one witness who had testified on his behalf. e. THAT this Honourable Court be pleased to give appropriate directions on the continuation or rehearing of this matter before the new trial judge in order to ensure a fair hearing. f. 2. THAT the costs of this application be in the cause. The application is based on the grounds that Justice Munyao Sila (as he then was) recused himself from hearing the present suit upon an application by the Plaintiff/Applicant. 3. The Plaintiff/Applicant states that on the day of hearing of the defence case before Justice Munyao, he requested an adjournment on account of illness and indisposition which request was declined. The Plaintiff/Applicant nonetheless left the Courtroom; thus, the hearing proceeded in his absence. 4. The Plaintiff/Applicant therefore asserts that he was denied his constitutional right to cross-examine the defence witnesses. It is on this Page 2 of 14

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premise that he seeks the recall of the witnesses who testified in his absence, with a view to affording him an opportunity to cross-examine them. He also states that on account of hearing having proceeded without him, he requires typed proceedings to understand the stage at which the matter had reached before the alleged recusal of Justice Munyao. 5. Additionally, the Plaintiff/Applicant states that he had called one witness, but he has three other witnesses whose testimony is material to the subject matter of the suit. He pleads that he stands to suffer prejudice if he is not allowed to present his case fully, or challenge the defence’s evidence. 6. The 1st and 2nd Defendants responded to the application through a Replying Affidavit Sworn on 26th March, 2026 by the 1st Defendant/Respondent. He deposes that that the Plaintiff/Applicant had the opportunity to cross examine the defence witnesses but failed to do so. He also states that allowing the Plaintiff/Applicant to call additional witnesses after the closure of the Plaintiff’s case will prejudice them. He maintains that that 1st and 2nd Defendants have a right to efficient and timely administration of justice, and urges the Court to dismiss the application with costs. 7. The Plaintiff/Applicant filed a response dated 28th April, 2026 to the Replying Affidavit. He states that the Defendants are responsible for the delay in conclusion of this mater which was filed in 2011. The 1st and 2nd Defendants/Respondents are also in occupation of the suit land from which Page 3 of 14

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they obtain rental income. Therefore, the 1st and 2nd Defendants/Respondents cannot rightfully rely on expeditious disposal of cases when they themselves caused earlier delays; further, they have an incentive to prolong the determination of this suit, as they are in possession of the suit land. 8. The Plaintiff/Applicant also states that the Defendants will not suffer any prejudice that cannot be compensated through costs if the application is allowed. SUBMISSIONS 9. The application was heard through written submissions. The Plaintiff/Applicant’s submissions, dated 8th May, 2026, identify five issues for consideration. He submits that the 1st and 2nd Defendants/Respondent’s submission that the orders sought in the application will delay the conclusion of the suit is misguided. He relies on the Court's holding in Chemwolo & Another v Kubende [1986] KECA 87 (KLR), submitting that even where there is delay, the law favours substantive justice over procedural technicalities. 10. The Plaintiff/Applicant asserts that the right to a fair hearing under Article 50(1) of the Constitution, 2010 is a non-derogable right. He therefore submits that cross-examination is a critical component of the trial process, that he should be allowed to recall and cross examine the witnesses who Page 4 of 14

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testified in his absence, that the Court exercises its discretion to permit him to call three other witness who have evidence material to the resolution of the dispute, all consistent with his constitutional and non-derogable right to a fair hearing. 11. The submissions of the 1st and 2nd Defendants/Respondents are dated 12th May 2026. Learned Counsel for the Respondents, Ms Bosire, submits that several adjournments in this suit have been occasioned by the Plaintiff/Applicant’s non-appearance. As a result, the Plaintiff/Applicant filed an application dated 1st December 2025, similar to the present one. That application was determined on the merits by a Ruling delivered on 3rd March 2026 by Justice Munyao Sila (as he then was). 12. Counsel invites this Court to find that the instant application is barred by res judicata because it raises the same issues as the previous application. They cited section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya, and the Court of Appeal’s holding in Independent Electoral and Boundaries Commission v. Maina Kiai & 5 Others (2017) eKLR on the application of res judicata in support of Counsel’s submission. 13. The Plaintiff/Applicant filed further written submissions dated 25th May 2026. He narrates that during the hearing held on 26th November 2025, he was ill and on his arrival at the Court, he found that this Advocate was not present. He made an oral application for adjournment on account of his illness and the absence of his Advocate. His application was denied. He Page 5 of 14

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states that he thereafter sought leave to seek urgent medical attention. He submits that he does not seek to reopen an already determined matter, but to restore procedural fairness in the trial. Analysis and Determination: 14. Before listing the issues for determination, there are two preliminary issues that do not require me to decide. First, typed proceedings can be accessed at the registry without a Court order. Second, by a Ruling dated 03rd March, 2026, Justice Munyao Sila (as he then was) did not recuse himself. He was instead appointed to the Court of Appeal before the application could be determined. In any event, it was clear that this matter would proceed before a different judge; hence, it was not necessary for him to decide on the Plaintiff’s application for his recusal. 15. The following issues arise for determination in the present application: a. Whether the Plaintiff’s application is barred by res judicata. b. Whether the Defendants’ witnesses who testified in the absence of the Plaintiff/Applicant may be recalled for cross-examination. c. Whether the Plaintiff’s case may be reopened for the Plaintiff to call three additional witnesses. Whether the application is res judicata 16. Learned Counsel for the 1st and 2nd Respondents submitted that the present application is res judicata the application determined on merit by the Court Page 6 of 14

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vide a Ruling dated 3rd March 2026. The record of the Court discloses that the application before Justice Munyao Sila (as he then was), related to his recusal. However, he did not determine the issue because he was appointed to the Court of Appeal, and as a result, a different judge would hear the suit. The application for his recusal was rendered nugatory by his appointment. 17. Hence the Court cannot find any disposition on the issues raised by the Plaintiff/Applicant in Justice Munyao’s Ruling of 3rd March, 2026. The Plaintiff’s application is therefore properly before the Court because the issues raised in the present application have not previously been determined with finality. Whether the defence witnesses may be recalled for cross-examination 18. The Applicant deposes that he was present in court before the hearing of the defence case commenced on 26th November 2025. The record shows he was ordinarily represented by an Advocate who was absent on that date. The Plaintiff/Applicant states that he was also unwell therefore requested for an adjournment of the hearing on the grounds of illness and the absence of his Advocate. However, his request was denied by the Court but he proceeded to leave court room. The hearing proceeded. 19. The question of whether Justice Munyao correctly exercised discretion to deny the Plaintiff/Applicant an adjournment was a matter for judicial consideration. That decision ought to be challenged by way of an appeal to Page 7 of 14

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the Court of Appeal. And even then, the Court of Appeal in Thomas Openda v Peter Martin Ahn [1984] KECA 25 (KLR) had the following to say regarding the denial of an adjournment in circumstances almost identical to the present one: “The refusal of an adjournment is what Buckley J in Rose v Humbles [1970] 2 All ER 519, 523f Ch D called an extreme course for a judge to take but it is a matter for his discretion (order VI rule 1) and it should not be interfered with by any appellate court unless it has been exercised in such a way that is caused an injustice when the appellate court must make sure it is further heard. Among the matters that should be taken into account are any previous indulgence granted to the applicant, was he solely responsible for the fact that he was not in a position to proceed with his case on the day on which the adjournment was refused, was his evidence important, had he an arguable case on the merits and did illness or some physical difficulty he had prompt his application? It is not sufficient that the appellant has a feeling justice has not been done. Atkin LJ in Maxwell v Kenn [1928] 1 KB 645, 657; Dick v Piller [1943] KB 497; Rose v Humbles (ibid). When he asked for an adjournment Openda was in good health and no physical disability prevented him from entering the witness-box and telling the truth about this Page 8 of 14

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agreement. The action was not a heavy one. His evidence was important but his defence was almost unarguable; and indulgence had been shown to him previously. What happened was that Openda voluntarily left the field before the battle was over. He has the very heavy task of satisfying this court it was futile for him to continue and that had he done so he would not have had a fair, proper or satisfactory hearing from the judge. Brassington v Brassington [1962] P, 276, 282. Openda, in my view, did not suffer a denial of justice and he has not satisfied me justice might not have been done.” 20. Nonetheless, as the Court retains the jurisdiction to recall a witness on an application of a party, it can substantively consider the justification provided in an application such as this regardless of the nature of the grounds offered in support. Such a consideration is upon the below legal framework. 21. Section 146(4) of the Evidence Act, Cap. 80 Laws of Kenya, empowers this Court to recall a witness for further examination-in-chief or crossexamination. It provides as follows: “The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross- examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.” Page 9 of 14

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22. Order 18 Rule 10 of the Civil Procedure Rules, 2010, in this regard, states 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 fit.” 23. Sufficient reasons must therefore be provided for the Court to exercise its discretion in favour of the Applicant. The overarching principles on the exercise of the Court’s discretion were expressed by Porter J.A. in Pithon Waweru Maina v Thuka Migiria [1982-88]1 KAR 171 at p. 172, as follows: “Firstly, as was stated by Duffus P in Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76C and E: “There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules”. Secondly, as Harris J said in Shah v Mbogo [1967] EA 116 at 123B “This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person Page 10 of 14

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who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”” 24. The Plaintiff/Applicant asserts that the Court’s failure to grant him an adjournment was a limitation on his right to a fair hearing. He states that he was ill on the hearing date and only left to seek urgent medical attention. Despite this assertion, the Plaintiff/Applicant has not provided any medical notes or any other evidence to prove that he was actually ill that he could not proceed with hearing. Secondly, no evidence was provided to explain why his then advocate did not attend court during the hearing. 25. The right to a fair hearing is an entitlement of all parties in a suit and rights carry responsibilities. Inter alia, diligence on parties to prosecute their cases and to act in good faith. It was not open on the Applicant to ignore the order refusing the adjournment by walking away which showed disregard to the court process. 26. Delay, in and of itself, prejudices other litigants, and I imagine this must be what Justice Munyao was trying to avoid by denying the Plaintiff/Applicant an adjournment. While the Plaintiff has the avenue to apply for the recall of witnesses, the application must be sufficiently justified. In this case, there no evidence in support of the Plaintiff’s allegations that warrants the exercise of discretion in his favour. Whether the plaintiff’s case may be reopened for the plaintiff to call three additional witnesses Page 11 of 14

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27. The Plaintiff/Applicant states that he has three additional witnesses whose evidence is material to the determination of the present suit. He therefore seeks to reopen the Plaintiff’s case so that he may call the said witnesses. The Court is empowered, in its discretion, to allow a party to produce additional evidence but as already stated, such discretion is to be exercised judiciously; only in deserving cases may it permit the reopening of a party’s case and tendering of additional evidence. 28. The Court is persuaded with the holding of Eboso J. in Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo [2019] KEELC 2600 (KLR) on what the applicant needs to demonstrate to warrant the exercise of the Court’s discretion to permit the reopening of a case. The learned Judge stated as follows: “11. Over the years, courts in the Commonwealth have developed principles which guide the jurisdiction to re-open a case and receive additional evidence in a trial court. First, the jurisdiction is a discretionary one and is to be exercised judiciously. In exercising that discretion, the court is duty-bound to ensure that the proposed re-opening of a part’s case does not embarrass or prejudice the opposite party. Second, where the proposed reopening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. Third, the plea for reopening of a case will be rejected if there is inordinate and Page 12 of 14

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unexplained delay on part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Fifth, the evidence must be such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible. (See Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & others (2018) eKLR; Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another (2015) eKLR; and Ladd v Mashall (1954) 3 All ER 745).” 29. First, the Plaintiff/Applicant has not explained why the additional witnesses were not available during the hearing of his case. The aim of the Civil Procedure Rules is to guide parties towards a fair and expeditious disposal of the suit. Before scheduling the matter for hearing, the parties agreed and were satisfied with the evidence they were to present at the hearing. That is why Order 11 of the Civil Procedure Rules, 2010, requires parties to disclose their witnesses, documents, and other evidence to avoid delay in the proceedings and, importantly, trial by ambush. 30. Second, in determining whether to allow a party to reopen their case, the Court is to consider whether the said additional evidence shall have an important influence on the outcome of the case, and whether the evidence Page 13 of 14

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is apparently credible. In this case, the Plaintiff/Applicant only asserts that the witnesses’ testimony is important for the just determination of the case. He, however, withholds this testimony, which he could have presented to the Court as annexures of the proposed witness statements. 31. Thus, the credibility of the Plaintiff/Applicant’s alleged witnesses can be assessed by the Court to determine whether they merit reopening the case, even though the evidence of the defence witnesses has already been taken. The inevitable consequence of the foregoing analysis is that the Plaintiff/Applicant has not tendered sufficient reasons to warrant the Court’s exercise of discretion in his favour. His application to reopen his case to call additional witnesses and/or cross-examine the Defendants’ witnesses must therefore fail. 32. In conclusion, I hold that the application is without merit and it is hereby dismissed with costs to the 1st and 2nd Defendants/Respondents. Ruling dated, signed and delivered at Kisii this 17 th day of September, 2026. A. OMOLLO JUDGE Page 14 of 14

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