Benatech Limited & another v Attorney General (Commercial Case E218 of 2021) [2025] KEHC 13380 (KLR) (Commercial and Tax) (26 September 2025) (Ruling) Neutral citation: [2025] KEHC 13380 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS) COMMERCIAL AND TAX COMMERCIAL CASE E218 OF 2021 FG MUGAMBI, J SEPTEMBER 26, 2025 BETWEEN BENATECH LIMITED ......................................................................... 1ST PLAINTIFF TREASURE GENERAL MERCHANTS LTD ................................... 2ND PLAINTIFF AND ATTORNEY GENERAL ........................................................................ DEFENDANT RULING Background and Introduction 1. This ruling concerns the limited question on whether the plaintifis should be allowed to file further documents on the footing that the defendants allegedly filed additional documents on the morning of 10th July 2025, when the matter was scheduled for hearing. 2. Pursuant to directions issued on 10th July 2025, the parties filed affidavits addressing the allegation of late filing and service. I have consequently considered the affidavits sworn by Nicholas Kamande, Counsel for the plaintifis on 31st May 2025 as well as that filed by Bonn Bett on behalf of the defendant, on 18th July 2025. Analysis and Determination 3. I have equally considered the evidence filed by both parties on the issues in contention. Without a doubt, the CTS records presented by the defendant show no filing by themselves on 10th July 2025. The plaintifis did not place before the Court any cogent documentary material impugning the CTS extract or otherwise proving a contrary filing history. On the documentary record, therefore, the allegation of last-minute filing on the morning of the hearing is not borne out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13380/eng@2025-09-26 1
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4. The allegation that the plaintifis were only served with the witness statement of Maurice O. Oluoch and not the bundle of documents is untenable for at least three reasons. First, the Oluoch statement expressly and repeatedly cross-references the defendants’ documentary bundle. It defies logic and ordinary diligence that the plaintifis could prepare for hearing on a statement so plainly dependent on an accompanying bundle, yet neither request the attachments nor register a timely protest if, as alleged, the bundle had not been served. 5. Secondly, the plaintifis themselves have previously invoked the very documents they now disown. In their application dated 12th May 2025, supported by the affidavit of Isaac Kariuki Njoroge sworn the same day, they expressly averred that on 7th March, 2023 the defendant herein served the respondent with a witness statement together with a bundle of documents dated 16th November, 2022 in compliance with court orders issued on 22nd November, 2022. That sworn admission, made on oath by a principal of the plaintifis, is squarely at odds with the present denial. 6. Third, parties owe the Court a duty of candour. A litigant cannot approbate and reprobate by relying on a factual position when it is advantageous to do so (indeed, after obtaining partial judgment on the strength of the very documents) and then disown that position when it seems expedient. On the totality of the record, I find as a fact that service of both the defendant’s witness statement and the documentary bundle was duly efiected and acknowledged well before the hearing date. The plaintifis are therefore estopped from denying or disowning that bundle. 7. Having so found, the prayer by the plaintifis to file documents in response post commencement of the hearing falls short of the required threshold. No credible reason has been given for this. Having been served by the defendants with their bundle of documents before the hearing, the plaintifis ought to have sought leave to file any documents in rebuttal at that time, not post-commencement. I have not been told that even with reasonable diligence, the material intended to be introduced now could not have been adduced earlier. 8. I take the view that permitting further documents at this late stage on a premise that has already been discredited by the CTS and the plaintifis’ own sworn admissions would reward dilatoriness, undermine case management orders, and prejudice the defendants by fragmenting a hearing that was long slated to proceed. On the other hand, any prejudice caused to the plaintifis is self-created and, in any event, can be adequately addressed by the extant record and the right to cross-examine and make submissions on the probative value of the defendants’ materials. Disposition and Final Orders 9. Accordingly, the appropriate course is to hold parties to the existing case management pathway and proceed to hearing. The defendant’s witness statement and bundle of documents filed on 13th December 2022 are hereby deemed as having been properly filed and served on the plaintifis, on 7th March 2023. 10. The plaintifis’ application to file further documents is declined. The matter shall be set down for further hearing at the earliest. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2025. F. MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13380/eng@2025-09-26 2
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