The Registered Trustees of Telposta Pension Scheme v The Chief Land Registrar & 4 others

Defendants from the property. The Plaintiff, which described itself as a public pension scheme established and registered under the Perpetual Succession Act, Chapter 164 of the Laws of Kenya, contended that it owned the suit property and that the 2 nd, 3rd, 4th and 5th Defendants had acquired the property illegally. The 1st Defendant filed a defence on 25th July 2022, denying the Plaintiff’s claim in its entirety. The 5 th Defendant filed a defence on 13th December 2022, likewise denying the Plaintiff’s claim. The 2 nd and 3rd Defendants were served with a Summons to Enter Appearance by substituted service but failed to enter an appearance. The suit was heard, and evidence closed on 22 nd February 2025, with the close of the 5th Defendant’s case. The court thereafter directed the parties to make written closing submissions. The 1 st Defendant filed its submissions on 23rd June 2025, while the 5th Defendant filed submissions on 1st September 2025. The Plaintiff did not file submissions but instead filed a Notice of Motion dated 9th September 2025 seeking: leave to re-open its case for the limited purpose of producing a certified copy of its certificate of incorporation issued under the Trustees (Perpetual Succession) ELC CASE NO. E012 OF 2022 RULING Page 2

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Act; an order that the said certificate be admitted in evidence as proof of the Plaintiff’s legal capacity to sue and be sued; and that the Defendants be granted an opportunity to respond and/or crossexamine the Plaintiff’s witness regarding the document to ensure that their rights are not prejudiced by its production. This is the application that is the subject of this ruling. The application is supported by the affidavit of Peter Rotich, sworn on 12 th September 2025. The application was brought on the grounds that the suit had been heard and was at the submission stage; that the Plaintiff’s certificate of incorporation, though constituting new evidence, merely confirms the Plaintiff’s pre-existing status and capacity; that, without the production of the certificate of incorporation in evidence, the Plaintiff’s legal status may be mischaracterised, leading to a miscarriage of justice; and that allowing the application would not prejudice the Defendants. The Plaintiff annexed to the supporting affidavit a copy of the Plaintiff’s certificate of incorporation, dated 16 th September 1999. The 5th Defendant opposed the application by way of a replying affidavit sworn on 22nd September 2025. The 5th Defendant ELC CASE NO. E012 OF 2022 Page 3 RULING

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contended that the application was brought late in the day, after the parties had closed their respective cases; that it was brought after the Plaintiff had been served with the 5 th Defendant’s submissions, while the Plaintiff had long been aware that its status had been challenged in the defence; that the Plaintiff should have filed the document at the pre-trial stage; that allowing the Plaintiff to produce the document would prejudice the 5th Defendant, as it would enable the Plaintiff to fill gaps in its case; that the Plaintiff should not be allowed to produce new evidence after both parties had closed their cases; that the Plaintiff had not explained why it could not produce the document earlier; that the Plaintiff was not deserving the exercise of the court’s discretion, since it failed to comply with the court’s directions on the filing of submissions and waited for the 5 th Defendant to file submissions before bringing the present application; and that the application had been brought in bad faith and too late in the day. The Court was urged to dismiss it with costs. The application was argued orally on 10 th November 2025, with Ms. Opondo appearing for the Plaintiff/Applicant and Mr. P.D Onyango for the 5th Defendant. I have considered the application and the 5 th ELC CASE NO. E012 OF 2022 RULING Page 4

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Defendant's response. I have also considered the parties' submissions and the authorities cited in support. The only issue for determination is whether the Plaintiff should be allowed to re-open its case to produce additional evidence in the form of its certificate of incorporation. In Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others [2018] eKLR (Ruling delivered on 28th September 2018), the Supreme Court stated as follows on an application to adduce additional evidence: “[79] Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya 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 influence or impact upon the result of the verdict, although it need not be decisive; ELC CASE NO. E012 OF 2022 RULING Page 5

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(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 difficult or impossible for the other party to respond effectively; (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. (j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in ELC CASE NO. E012 OF 2022 RULING Page 6

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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. [80] We must stress here that this Court even with the Application of the above-stated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution... [90] We are convinced that disallowing the additional evidence would deny the Appellant a fair trial, which is a nonderogable right under our Constitution. In addition, we are satisfied that allowing the additional evidence is not prejudicial to any party and will be in the interests of justice as the evidence is necessary and crucial in making of a proper judicial finding as to whether the Appellant had the requisite academic credentials to vie for governor of Wajir County which are core issues before the Court.” In Wanjie & others v. Sakwa & others [1984] KLR 275, the court (Chesoni Ag.JA.) stated as follows: ELC CASE NO. E012 OF 2022 RULING Page 7

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“…the principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of Ladd v Marshall [1954] 1 WLR 1489 at 1491 and those principles are: (a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; (c) The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” In Samuel Kiti Lewa v. Housing Finance Co. of Kenya Ltd & another [2015] eKLR, the court stated that: “20. The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard, re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such prayer for re-opening of the case will be defeated by inordinate and unexplained delay.” ELC CASE NO. E012 OF 2022 RULING Page 8

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In Raindrops Ltd. v. County Government of Kilifi [2020] eKLR , the court cited the Canadian Encyclopedia Digest Evidence (V) 12, (a), in which the authors stated as follows: "Where a party wishes to adduce evidence at a late stage that does not fall within the definition of rebuttal testimony, it must seek to re-open its case. The jurisprudence has not always been consistent in establishing what is required for the granting of leave to adduce new evidence and the matter is complicated by the fact that attempts to re-open can occur after the parties have closed their case, but before Judgment has been entered, and after Judgment has been entered while some Judges have advocated an unfettered approach to the trial Judges discretion whereby re-opening is permissible anytime it is in the interest of justice to do so, the more common method of proceeding is to focus on two criteria. (1) Whether the evidence; if it had been properly tendered would probably have altered the judgment, and (2) whether the evidence could have been discovered sooner had the party applied reasonable diligence. Re-opening the case is an extreme measure and should only be allowed sparingly and with the greatest of care. While the two criteria must both be considered, the need to have exercised reasonable diligence in discovering the evidence is not absolute. The more important the evidence would be to the outcome of the case, the stronger, the argument in favour ELC CASE NO. E012 OF 2022 RULING Page 9

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of its reception. Procedural concerns such as diligence should generally give way to the demands of substantial justice where failure to do so is likely to result in an obvious injustice. Nonetheless, re-opening is unlikely to be permitted where the evidence was discovered and not adduced originally because of a tactical decision by counsel." From the case law cited above, whether to reopen a case and admit additional evidence is within the court’s discretion. As a discretionary power, it must be exercised judiciously. The cited cases set out the principles by which the court exercises its discretion in applications to reopen a case and produce additional evidence. Applying those principles to this case, I am inclined to allow the application. Although the Plaintiff has not explained why the certificate of incorporation could not have been produced earlier, I am of the view that the need to do justice in the circumstances far outweighs that failure. In its plaint, the Plaintiff pleaded that it is a public pension scheme established and registered under the Perpetual Succession Act, Chapter 164 of the Laws of Kenya. The 5 th Defendant has denied the Plaintiff’s legal status, meaning that the Plaintiff’s capacity to sue would be an issue for determination at the trial. It follows that if the Plaintiff is denied an opportunity to produce evidence of its status as ELC CASE NO. E012 OF 2022 RULING Page 10

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pleaded, its case would not be determined on the merits, because it would fail on the ground of lack of capacity to sue. I am therefore of the view that disallowing the additional evidence sought to be produced by the Plaintiff would deny it a fair trial, which is nonderogable under the Constitution. I am not persuaded that the Plaintiff is seeking to fill gaps in its case, or that the Defendants will suffer any prejudice that cannot be compensated in costs. In my view, the Plaintiff is not seeking to introduce completely new evidence. The Plaintiff has already pleaded that it is a public pension scheme established and registered under the Perpetual Succession Act, Chapter 164 Laws of Kenya. It seeks to produce evidence of that establishment. When the certificate of incorporation is produced, the Defendants will have an opportunity to cross-examine the witness. This will ensure that any concerns they may have about the document are raised and brought to the court's attention. For the foregoing reasons, I find merit in the Plaintiff’s application dated 9th September 2025. The application is allowed in terms of prayers 1 and 3. The costs of the application are awarded to the 5 th ELC CASE NO. E012 OF 2022 RULING Page 11

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Defendant and assessed at Kshs. 20,000/-. The same shall be paid forthwith. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this day of September 2026 28 th E.K.WABWOTO JUDGE Ruling delivered virtually through Microsoft Conferencing Platform in the presence of: Teams Video N/A for the Plaintiff N/A for the 1st Defendant N/A for the 2nd and 3rd Defendants N/A for the 5th Defendant Joanne Omondi; Court Assistant ELC CASE NO. E012 OF 2022 RULING Page 12

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