Henry Kariuki Mwangi v Joyce Waithira Mwangi

2) The application is grounded on the Defendant/Applicant's position that the suit property (Thika Municipality Block 9/682) was acquired using her funds transmitted to her parents, including her mother, whom she now seeks to call as a material witness and who received funds to settle the Housing Finance Company of Kenya (HFCK) mortgage loan. At the same time the Applicant is supported by the Affidavit of Donald Ojwang the Advocate seized of the matter. Additionally, the Applicant has since retrieved a crucial payment receipt confirming a transfer of 14,000 Great British Pounds approximately Kshs. 2,000,000/- used toward the mortgage, which was previously misplaced alongside other receipts due to a lapse of time. She also seeks to file a supplementary witness statement to incorporate essential details inadvertently omitted from the initial statement on record. Finally, the Applicant contends that granting the orders at this early stage aligns with principles of substantive justice, will not prejudice the Plaintiff who can cross-examine the witness and remains within the Court's discretion to ensure a fair resolution. 3) The Supporting Affidavit is sworn by Donald O. Owang', an Advocate of the High Court of Kenya practising in the firm of Owang & Associates Advocates, who depones to being personally seized of the matter with the express authority of the Defendant/Applicant. The Deponent states that the Applicant resides in the United Kingdom, outside the ELC NO. E058 OF 2023 2|Page

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jurisdiction of the Honourable Court, and that requiring her to notarize a Supporting Affidavit would cause a delay of over two weeks. Consequently, while acknowledging the legal limitation that Counsel depones primarily to matters of law, the Deponent craves the indulgence of the Court to admit the underlying factual matters in light of the extreme urgency, the nature of the orders sought, and the Applicant’s absence from the jurisdiction. 4) The Deponent states that his firm came on record on 23rd July, 2026, subsequently filing a Notice of Change of Advocates on 27th July, 2026 after reviewing the case file and evidence. He explains that the Plaintiff’s suit concerns the purchase of the property known as Thika Municipality Block 9/682, acquired using funds remitted by the Applicant to her father, the Plaintiff, via a Power of Attorney. Due to a lapse of time, the Applicant had misplaced crucial receipts showing that she personally serviced the HFCK mortgage loan of Kshs. 2,000,000/- used to acquire the suit property. However, the Applicant has since retrieved a pivotal funds transfer payment receipt demonstrating a remittance of GBP 14,000 (equivalent to approximately Kshs. 2,000,000/-) to her mother, which instrument is annexed to the Affidavit and marked as "JM-1". 5) The Deponent further depones that the Applicant intends to call her mother, Mrs. Mary Njeri Kariuki, as an additional witness given her direct involvement in the purchase ELC NO. E058 OF 2023 3|Page

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transaction and her receipt of the mortgage settlement funds. Furthermore, the Applicant seeks leave to file a supplementary witness statement to plug material gaps inadvertently left out in her initial statement on record. The Deponent contends that the Court possesses inherent discretion to grant leave for the filing of additional evidence and documents to promote fairness and prevent prejudice, particularly at this initial hearing stage. He submits that allowing the application serves the ends of substantive justice and that no prejudice will be suffered by the Plaintiff/Respondent, who retains the opportunity to test the additional evidence through cross-examination. 6) The Application is opposed by the Defendant, Henry Kariuki Mwangi National Identity Card Number 2018840 who filed a Replying Affidavit sworn on 30/07/2026. The Deponent in the Replying Affidavit asserts that the application is merely a dilatory tactic employed by the Applicant/Defendant to delay the conclusion of the suit. He raises a point of law regarding paragraph two of the Supporting Affidavit, noting that the Applicant's Counsel conceded to deponing on matters of fact despite lacking capacity as a non-party, and urges the Court to enforce the strict boundaries of Affidavit evidence by dismissing the application with costs. 7) The Deponent details the procedural history of the suit, noting it was filed in 2023 and has undergone pre-trial directions. He states that despite multiple Court orders to file ELC NO. E058 OF 2023 4|Page

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trial bundles, timelines, the Applicant benefiting from consistently defaulted on prior leniency. He Court emphasizes that because litigation must come to an end, the Court should firmly enforce its orders and decline further interlocutory applications or accommodations. 8) Addressing the merits, the Deponent asserts he will suffer severe prejudice if the application is granted, as the Plaintiff's case is already heard and closed, leaving him no opportunity to respond to newly introduced allegations. He notes that the Applicant has offered no explanation for why the proposed witness statement and documents were not secured earlier. Furthermore, he contends that when the matter was mentioned on 27/07/2026, the Applicant's incoming Advocate indicated readiness to proceed with the hearing subject only to resolving a fee dispute with previous Counsel rendering the present application an afterthought brought in bad faith. Lastly, the Deponent mentions previous notifications to the Court regarding the Applicant's alleged boasts that she would use all available means to delay the matter, concluding with a prayer for the application's dismissal with costs to the Respondent. 9) The Application was canvassed by way of written submissions. Issues for Determination ELC NO. E058 OF 2023 5|Page

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10) Upon evaluating the Notice of Motion, the Supporting Affidavit, and the Replying Affidavit, the Court formulates two principal issues for determination: i. Whether the Supporting Affidavit sworn by the Defendant/Applicant’s Advocate on contentious matters of fact is competent and admissible in law. ii. Whether the Court should grant leave to the Defendant/Applicant to introduce a supplementary witness statement, additional documentary evidence, and an additional witness after the Plaintiff has closed his case, but prior to the commencement of the Defence hearing. Analysis and Determination 11) Regarding the preliminary issue on the competence of the Supporting Affidavit, the Respondent challenges its admissibility on the premise that it was sworn by the Applicant's Advocate, Donald O. Owang', on contentious factual matters concerning the acquisition of the suit property and the retrieval of misplaced receipts. Under Order 19 Rule 2 of the Civil Procedure Rules, 2010, Affidavits must strictly be confined to facts that the deponent can prove of their own knowledge. The fundamental legal tenet dictates that Advocates should not descend into the arena of dispute by swearing Affidavits on highly contested facts on behalf of their clients, as this conflates the roles of Counsel and witness. However, where an Applicant resides out of the ELC NO. E058 OF 2023 6|Page

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jurisdiction and there is extreme urgency, Courts have routinely granted procedural latitude, provided the averments do not cause irremediable prejudice to the opposing party's substantive rights. While Counsel’s decision to depone to the discovery of the £14,000 payment receipt skirts the outer boundaries of Order 19, striking out the Affidavit at this interlocutory stage would elevate procedural form over substantive justice, contrary to Article 159(2)(d) of the Constitution of Kenya, 2010, which decrees that justice shall be administered without undue regard to procedural technicalities. 12) Turning to the substantive issue of admitting new evidence and calling an additional witness after the closure of the Plaintiff's case, the Plaintiff asserts severe prejudice, arguing that the closure of his case deprives him of the opportunity to respond to these newly introduced facts 13) However, the Courts have consistently held that where an Applicant is out of the jurisdiction and there is extreme urgency, procedural latitude may be granted provided the averments are informational and do not strictly prejudice the opposing party's substantive rights. While the Advocate’s decision to depone to the discovery of the £14,000 receipt skirts the edges of this rule, striking out the Affidavit at this interlocutory stage would elevate procedural form over substantive justice, contrary to Article 159(2)(d) of the Constitution of Kenya. ELC NO. E058 OF 2023 7|Page

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14) The crux of the application is the introduction of a new witness who is the Applicant's mother and a newly retrieved funds transfer receipt after the Plaintiff has closed his case. The Plaintiff asserts severe prejudice, arguing that the closure of his case deprives him of the opportunity to respond to these new allegations. 15) In balancing the rights of both litigants, the Court must weigh the Plaintiff’s right to an expeditious trial and finality of proceedings against the Defendant’s constitutional right to a fair hearing under Article 50(1) of the Constitution, which includes the right to present all material evidence in her defence. Halsbury’s Laws of England elucidates that the Court retains a broad inherent discretion to allow a party to adduce further evidence before Judgment is pronounced, particularly where the evidence goes to the very root of the real issues in controversy, provided that its admission does not occasion incurable prejudice to the opposing party. Similarly, Black’s Law Dictionary defines Substantive Justice as justice fairly administered according to rules of substantive law, looking beyond mere procedural forms and technicalities to ensure the equitable resolution of a dispute. 16) the Because the Defence hearing has not yet commenced, trial flow is not fatally disrupted. The Plaintiff's apprehension of prejudice is curable; the admission of the new evidence does not leave the Plaintiff helpless. The Plaintiff retains the inviolable right to subject the Applicant ELC NO. E058 OF 2023 8|Page

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and the proposed new witness to rigorous cross-examination regarding the newly introduced £14,000 receipt. Furthermore, if the new evidence introduces fundamentally novel facts, the Plaintiff is at liberty under the Evidence Act to seek leave to adduce evidence in rebuttal. 17) The statutory foundation governing the exercise of Court discretion in admitting late evidence is anchored in the overarching mandate under Sections 1A and 1B of the Civil Procedure Act (Cap. 21), which command the Court to facilitate the just, expeditious, and proportionate resolution of civil disputes, alongside Section 3A of the same Act, which preserves the inherent power of the Court to make orders necessary for the ends of justice or to prevent abuse of the process of the Court. Courts exist to resolve the true matters in controversy rather than to penalize litigants for procedural oversights where costs can serve as adequate compensation. As famously enunciated by Nyarangi JA in the pivotal case of Philip Chemwolo & Another v. Augustine Kubende [1986] eKLR, "Broadly speaking, the Court has discretion to allow an amendment to the pleadings or the introduction of evidence to determine the real issues in controversy. An amendment will not be allowed if it will cause injustice to the other party which cannot be compensated by costs." ELC NO. E058 OF 2023 9|Page

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18) Additionally, in Central Kenya Ltd v. Trust Bank Ltd & 4 Others [2000] eKLR, the Court of Appeal robustly defended the primacy of substantive justice, stating: "The rules of procedure are handmaidens of justice and should not be used to defeat substantive justice ... A Court should not allow a party to be driven from the Judgment seat without considering his right to be heard, except in cases where the cause of action is obviously and almost incontestably bad." 19) The £14,000 transfer receipt is critical to determining the core issue: the financial contributions toward the purchase of Thika Municipality Block 9/682. Shutting out this evidence solely because the Applicant breached case management timelines would result in the Court rendering a Judgment in a factual vacuum, ultimately defeating the very essence of justice. However, the Defendant is undeniably guilty of procedural lethargy, having flouted pre-trial directions on the filing of trial bundles. While the evidence must be admitted, the Plaintiff must be adequately compensated for the inconvenience and delay occasioned by the Defendant's late filing. 20) The Court finds that the interests of substantive justice demand that the Defendant/Applicant be granted the opportunity to present her full evidentiary case, particularly given that the Defence hearing has not yet commenced and ELC NO. E058 OF 2023 10 | P a g e

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the Plaintiff will have the opportunity to cross-examine the new witness. The application dated 27th July 2026 is hereby allowed, subject to the Applicant bearing the costs of the application and the costs occasioned by the delay, payable to the Plaintiff. 21) Given the foregoing the Court makes the following orders: i) The Defendant/Applicant is hereby granted leave to file and serve a Supplementary Witness Statement, introduce the retrieved funds transfer payment receipt marked as Exhibit "JM-1", and rely on the additional witness statement of Mrs. Mary Njeri Kariuki within seven (7) days from the date hereof. ii) The Plaintiff/Respondent shall be at liberty, upon receipt of the Defendant's supplementary trial bundle, consequential to file and supplementary serve any statement or apply for leave to adduce evidence in rebuttal within seven (7) days of service. iii) The Defendant/Applicant shall bear the costs of the Notice of Motion dated 27/07/2026, as well as all thrown-away costs of Kesh 20,000 occasioned by the adjournment of the defence hearing, payable to the Plaintiff/Respondent ELC NO. E058 OF 2023 11 | P a g e

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before the next hearing failure to which Order (i) above stand vacated. Orders Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA MICROSOFT TEAMS THIS 21ST DAY OF SEPTEMBER 2026 ……….………… MOGENI J JUDGE In the virtual presence of: Mrs. Njano for the Plaintiff/Respondent Mr. Owang for the Defendant/Applicant Mr. Melita - Court Assistant ………………...… MOGENI J JUDGE ELC NO. E058 OF 2023 12 | P a g e

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