David Kirimi v The Land Registrar Meru Central District & 10 Others; Jenaro Nkuubi & 3 Others (Interested Parties)

CHARLES RUGOJI ……………………...………..4TH INTERESTED PARTY RULING 1. Before me is the Notice of Motion Application dated the 13.07.2026, brought pursuant to the provisions of Order 11 Rule 4; and Order 51 Rules 1 and 2 of the Civil Procedure Rules, 2010; Sections 1A , 1B and 3A of the Civil Procedure Act, Chapter 21, Laws of Kenya; and Article 159 [2] [d] of the Constitution, 2010 and wherein the Cross petitioners/applicants [herein after referred to as the applicants] have sought various reliefs. 2. The reliefs sought vide the application are: i. That the service of this application be dispensed with due to its nature of urgency and exparte orders be granted forthwith. ii. That the court does hereby stay of these and any other proceedings in this case until this application is heard and determined. iii. That the court be pleased to reopen the case and allow additional documents to filed by the defendants. iv. That the court be pleased to deem the documents as duly filed upon payment of the requisite court fees. Page 2 of 16

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v. That the other parties/respondents be at liberty to cross-examine the cross petitioners/applicants on the said documents in respect of the case. vi. That the court do grant any other order it deems just and fair to grant. vii. That the costs of this application be in the cause. 3. The application is premised on various grounds. The grounds are: The applicants have since discovered crucial /critical documents; the documents that have been discovered touch on and concern specific aspects of the dispute; the documents are material and relevant to the issues in this court; the documents relate to the transaction pertaining to the purchase and acquisition of the suit property; the documents were under the custody of the family of the vendor; the family of the vendor belatedly availed the documents; and the documents shall assist the court to determine the issues in controversy. 4. Additionally, it has been asserted thus: The documents sought to be produced vide additional evidence were not within the custody of the applicants; the applicants only came across the documents long after the pretrial; the documents will assist the applicants to discharge the burden of proof; the respondent shall be at liberty to cross examine the applicants on the basis of the additional evidence; and the respondents shall not suffer any prejudice. 5. The application is supported by the affidavit of Thomas Murugu M’Itwarichiu and Fredrick K Mburugu. The affidavit is sworn on 13.07.2026. The deponents of the supporting affidavit have reiterated the grounds contained in the body of the application. Page 3 of 16 In addition, the

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deponent has asserted that the documents which are sought to be introduced were not under the custody of the applicants. Moreover, it has been asserted that the documents were belatedly supplied by the family of the vendor [now deceased]. 6. The application was opposed by the petitioner in respect of ELC Petition number 2 of 2019. The petitioner, namely Joyce Ntinyari Kirimi – Legal Administratix of the David Kirimi [deceased], has denied the assertions by the applicants. In addition, it has been averred thus: The documents which are sought to be tendered are documents which were under the custody of the applicants; in any event, the documents were well known to the applicants; the applicants ought to have exercised due diligence; the applicants do not appear to have been keen; and that the documents are being introduced to fill – in the gaps in the applicants’ case that were exposed during the cross-examination. 7. Moreover, it has been posited thus: The applicants have not supplied/availed plausible reasons why the documents were not brought fourth at the onset; that the applicants have come to court in bad faith; the application has been mounted with unreasonable and inordinate delay; the respondent shall be prejudiced; and the injustice to be suffered, will not be cured by way of cross examination. 8. The application came up for directions on the 21.07.2026, whereupon the advocates for the parties sought directions as pertains to the hearing and disposal of the same. In particular, the advocate for the parties indicated that the same were desirous to file and exchange written submissions. To Page 4 of 16

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this end, the court issued directions as pertains to the filing and exchange of the submissions. Besides, the court also circumscribed the timelines. 9. The applicants herein did not file any written submissions. When the matter came up for mention on the 21.09.2026, learned counsel Mr. Kiutha Arithi for the Petitioner informed the court that same had not been served with the submissions. In addition, the court reviewed the Case tracking system [CTS] and no submissions on behalf of the applicants were obtainable. 10.On the other hand, learned counsel for the petitioner [Mr. Kiutha Arithi] filed submissions dated the 18.09.2026 and wherein same has highlighted three [3] key issues. The issues are: Whether the application is an attempt to fill in the gaps that were exposed during cross examination; whether any reasonable diligence has been demonstrated by the applicants; and whether the petitioner shall suffer prejudice, if the application is allowed. 11.In a nutshell, learned counsel for the petitioner has submitted that the documents which are now sought to be introduced vide additional evidence, are documents which were under the custody of the applicants. Moreover, it has been posited that if the document[s] were not under the custody of the applicants, same ought to have exercised due diligence and to procured the documents. Be that as it may, it has been asserted that the applicants have not demonstrated the diligence, if any, that was shown in an endeavor to bring forth the documents without delay. Page 5 of 16

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12.Additionally, it has been submitted that the documents sought to be tendered are geared towards filing the gaps, which arose during the cross examination. In particular, it has been submitted that the applicants herein are merely trying to patch up their case, long after the petitioner had closed her case. Furthermore, it has been posited that the introduction of the additional evidence shall unduly prejudice the petitioner. It has been contended that the petitioner shall not have the opportunity to respond to the documents, nay, additional evidence, insofar as the petitioner has long closed her case. 13.It has equally been contended that the additional evidence if allowed will embarrass the trial and defeat the import of fair trial/fair hearing. Learned counsel has argued that the court needs to ensure that all parties/disputants, are heard on equal footing; and at arms-length. 14.Thereafter, learned counsel for the petitioner has cited various decisions. The decisions are: Samuel Kiti Lewa versus Housing Finance Company of Kenya and another [2015] KEHC 3930; Kamwenji versus Kariuki [sued as the administratix of the estate of Zacharia Kimuhu] [2026] KELC 439 and Raiply Woods Kenya Limited versus Subcounty Cooperative Officer – Turbo and Soi [2026] KECA 334, respectively. 15.Premised on the foregoing, the court has been invited to find and hold that the subject application is devoid of merits. In addition, the court has been implored to dismiss the application and to award costs to the petitioner. Page 6 of 16

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16.The rest of the parties did not file any written submissions. In this regard, the only submissions on record are those filed by the petitioner; and whose details, I have referenced. 17.Having reviewed the application; the supporting affidavit thereto; the replying affidavit in opposition thereto; and taking into account the written submissions on record, two [2] key issues emerge for determination. The issues are: Whether the applicants have established sufficient cause /good reason to warrant exercise of discretion in their favor; and Whether the petitioner shall be disposed to suffer undue prejudice/injustice or otherwise. 18.Regarding, the first issue, it is important to observe that the subject petition was filed in the year 2019. To this end, there is no gainsaying that the petition has been in the corridors of justice for more than 7 years. In this regard, any decision that this court makes, ought to take into account the overriding interest of the court in terms of Sections 1A and 1B of the Civil procedure Act, Chapter 21 Laws of Kenya; and Article 159 [2][b] of the Constitution, 2010; and essentially, the need to have disputes heard and determined without undue delay. 19.Additionally, the court is called upon to ensure that before same exercises its discretion, the applicant must account for the delay and provide plausible reasons, as to why the documents now sought to be produced, could not have been availed at the onset. Suffice it to state that the reasons provided must be genuine and honest. 20. Moreover, there is no gainsaying that sufficient cause can only be established where the claimant approaches the seat of justice with clean Page 7 of 16

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hands; honesty; and in good faith. Barring proof of bona fides, the court must not exercise its discretion in favour of an undeserving person. 21.In the case of Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR), the court illuminated what constitutes sufficient cause by stating thus: "sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" 22.Have the applicants established/demonstrated sufficient cause? To begin with the applicant’s case is predicated on the contention that same bought /purchased the suit properties from Cecelia Kabura Mukindia [deceased]. In this regard, there is no gainsaying that the applicants, no doubt, Page 8 of 16

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retained in their custody assorted documents, or counter-parts thereof, including: the sale agreement; the confirmation of ownership; the payment receipts; the transfer form and anything associated with the purchase of the suit properties. 23. It is trite law that where a party enters into a transaction, such party will ordinarily, retain the counterpart of the documentation, whether it be a sale agreement or proof of ownership. 24.Secondly, even assuming that the applicants herein did not have the impugned documents under their custody [in the manner asserted], it was still incumbent upon the applicants to approach the family of the vendor, in good time, so as to procure and obtain the documents. There is no evidence that the applicants herein made any attempts [by whatever means] to obtain the documents. There is no letter at all that has been annexed to show that the applicant ever requested to be availed such documents. 25.Other than the foregoing, it is also important to underscore that even though the applicants posit that the family of the vendor belatedly availed the documents, it has not been shown, when the documents were [sic] availed. The court is left wondering what does “belatedly” mean. Could it be the 13.07.2026, when the application was filed ; or could it be one year before? 26.It is not lost on me that where a claimant is seeking the indulgence of the court [condonation], such a party must come to court without undue delay; and where there is delay, the applicant is obligated to do: Page 9 of 16

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a. To isolate the duration of delay. b. Account for the duration of the delay. c. Offer candid and honest explanation; and d. Avoid any endeavor to mislead the court. [See the holding of the Apex Court in the Case of County Executive of Kisumu versus Kisumu County Government and Others [2017] eklr]. 27.In respect of the instant matter, the applicants herein are clearly not being honest. I say this because on one hand, the applicants are stating that “they only discovered the documents recently when same were going through their records.” The question is; in whose custody were these records? Why didn’t the applicants go through the record earlier? And what was the difficulty in going through the records in good time? 28.Shortly, the applicants then take a sharp detour. At paragraph number 3 of the supporting affidavit, the deponents assert that the documents were belatedly supplied by the family of the vendor [deceased]. So, were the documents belatedly discovered from the applicants’ records; or were they belatedly supplied? Something seems to be a miss. The two version[s] are contradictory. 29.Then there is also the aspect of the CR 12 for the 4 th respondent. It has been contended that same was not in the custody of the applicant at the time of pretrial. This is the reason why the said CR 12 was [sic] not availed. But, surely, a diligent person ought to have procured the CR 12 Page 10 of 16

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from the registrar of companies. For good measure, there is no assertion that some efforts were made to obtain the CR12. 30.Be that as it may, it is clear in my mind that the issue of the incorporation of the 4th respondent/1st cross petitioner; the date of its incorporation; and the directors thereof, formed a critical part of the cross examination of Mr. Fredrick K Mburugu. It then means that the desire to produce the document is intended, to defeat the cross examination; and by extension, plug the gaps. Quite clearly, such an endeavor is not acceptable in the eyes of equity. 31.In a nutshell, I am afraid that the applicants herein have not demonstrated sufficient cause to warrant the re-opening of the applicants’ case; and to introduce additional documents. Suffice it to point out that additional evidence ought not to be introduced to plug the gaps [if any] that were exposed during cross examination. 32.In the case of Jianxi Water and Hydropower Construction Kenya Ltd v Kiilu [2026] KECA 1313 (KLR), the Court of Appeal restated the guiding principles that underpin re-opening of a case and adduction of additional evidence. 33. The Court stated thus: 30“We are aware that the court reserves the right to exercise its discretion to allow the re-opening of a case. In Samuel Kiti Lewa vs. Housing Finance Co. of Kenya Ltd & Another [2015] KEHC 3930 (KLR), the Court held: “The court retains discretion to allow re-opening of a case. That discretion must be exercised Page 11 of 16

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judiciously. In exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite. In that regards 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 in ordinate and unexplained delay.” 34.In my humble view, the applicants herein have not met the set parameters, to warrant the exercise of discretion in their favour. Moreover, there is no gainsaying that the application has been mounted with unreasonable delay; and which delay, has not been satisfactorily accounted for. 35.Moving on to the second issue, I wish to point out that it is the duty of the court to ensure that all the parties in a litigation/dispute, are afforded a fair hearing. The hearing must be undertaken on equal footing. Each party must have the opportunity/facility to avail evidence in support of own case; and to challenge the evidence by the adverse party. The evidence of the adverse party, is ordinarily challenged vide cross examination. 36.In respect of the subject matter, it is common ground that the petitioners in both petitions [ELC Petition number 2 of 2019; and ELC Petition number 3 of 2020] have long closed their cases. In addition, the 1 st, 2nd and 3rd respondents [represented by the Honourable Attorney General] have equally closed their cases. Page 12 of 16

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37.The bottom line is the petitioners and the 1 st, 2nd and 3rd respondents, who are key players, nay, primary parties, will not have the opportunity to speak to the intended additional evidence. It is not enough to say that the said parties would have occasion to challenge the evidence by way of cross examination. Notably, fair hearing denotes the right to call forth evidence; and the right to challenge the evidence by the adverse party. 38.In the case of Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16 (KLR), the Supreme Court highlighted the obtaining jurisprudence thus: “It is required to conduct a fully-fledged trial, where the affected judge is entitled to the right to legal representation; the right to be present while the witnesses testify; the right to adduce and challenge evidence; and the right to present arguments, and related rights in order to ensure that the hearing complies with the dictates of procedural and substantive fairness.” 39.The apex court was indeed dealing with a matter concerning the removal of a judge from office. However, what is apparent is that the apex court demarcated the key elements that underpin fair hearing and fair trial. Once salient feature is: the right to adduce [Evidence-in chief]; and challenge the evidence[ Cross- Examination]. The adduction of evidence denotes examination in chief, whereas challenging the evidence by the adverse party denotes cross examination. Page 13 of 16

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40.Regarding the subject matter, the applicants contends that the petitioner and the other party shall have a right to cross examine the applicants on the basis of [sic] the intended documents. However, the applicants are not addressing the prejudice that will arise, because the petitioner shall not have an opportunity to tender evidence to contradict [sic] the intended additional evidence”. 41.Moreover, if the application beforehand was allowed, there is likelihood of a “ripple effect”. The ripple effect is: The petitioners and the 1 st, 2nd and 3rd respondents, may very well also seek to re-open their cases; and bring forth additional documents. The net effect would be to delay the determination of the subject petition, which has already accumulated 7 years. Such a scenario would be antithetical to the rule of law. In any event, the aspiration vide Article 159 [2] [b] of the Constitution, would be negated. Conclusion: 42. The Applicants herein were desirous to partake of the equitable discretion of the court. To be able to partake of such discretion, it was incumbent upon the applicants to approach the court with clean hands and to justify the duration of delay. The applicants did not do so. 43.Furthermore, it is also important to underscore that re-opening of a case and production of additional evidence, ought not to be resorted to, where the evidence is intended to fill-in the gaps. In respect of the instant matter, there is every reason and apprehension; to hold that the additional evidence is intended to plug the gaps. 44.To my mind, the subject application was clearly intended to negate the right to fair hearing; and to impact upon the playing field. It is not Page 14 of 16

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acceptable. It was bound to occasion injustice and provoke a miscarriage of justice. 45.In a nutshell, the application is bereft of merits. Final orders: 46.In the upshot, the final orders that commend themselves to the court are: i. The Application dated 13.07.2026 be and is hereby Dismissed. ii. Costs of the Application be and are hereby awarded to the petitioner in ELC Number 2 of 2019 only. iii. The Costs shall be agreed upon and in default be taxed in the conventional manner. 47.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON THIS 24TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of Court Assistant: Zakayo Mr. Kiutha Arithi for the petitioner in ELC Pet No. 2 of 2019; for the 1 st respondent in cross petition in ELC Petition No. 2 of 2019; for the 11 th interested party in ELC Pet. No. 3 of 2020 and for the defendant in ELC No. E001 of 2021. Page 15 of 16

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Mr. Maranya for the petitioner in ELC Pet No. 3 of 2020. Mr. Murango Mwenda for the 4th respondent in ELC Pet. No. 2 of 2019 and 1 st Cross Petitioner in ELC Pet No. 2 of 2019. Mr. Muchomba for the 4th to the 11th Respondents/Applicants in ELC Pet No. 2 of 2019; for the cross petitioner in ELC Pet No. 2 of 2019; for the 4 th interested party in ELC Pet No. 2 of 2019 and for the plaintiff in ELC E001 of 2021. Miss Miranda for the Respondents in ELC Pet No. 3 of 2020; 1 st – 3rd respondents in ELC Pet. 2 of 2019; 3 rd & 4th respondents in the cross petition in ELC No. 2 of 2019. Mr. Elias Mutuma for the 5th, 8th, 13th and 14 Interested parties in ELC Petition No. 3 of 2020. Ms. Kiyuki holding brief for Ms. Mutinda for the 2 nd Respondent in cross petition number 2 of 2019. Page 16 of 16

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