Crrc Qiqihar Rolling Stock Co Ltd v Rift Valley Railways (uganda) Limited & 2 others

5. The Plaintiff was granted leave to appeal this ruling and proceeded to examine its sole witness, though it did not close its case. 6. The Plaintiff subsequently filed the instant Application seeking the following orders: i. Admission of the Supplementary List and Bundle of Documents dated 17/10/2024. ii. Leave to produce the said documents at the hearing. iii. Recall of the Plaintiff's witness, Liu Jinyu, to produce the documents. iv. Corresponding leave for the Defendants to file documents in response. 7. The 2nd and 3rd Defendants opposed the Application by way of a Preliminary Objection dated 7/03/2025 and the Grounds of Opposition dated 11/02/2025, arguing in the main that it is res judicata and an abuse of process. 8. Both the Application and the Preliminary Objection were canvassed by way of written submission. The Plaintiff/Applicant, through the law firm of Ndegwa & Sitonik Advocates, filed its submissions – apparently erroneously dated 01/03/2024, whilst the law firm of Prof. Albert Mumma & Co. Advocates filed the 2nd and 3rd Defendant’s submission on 25/03/2025. Analysis and Determination 9. Having considered the pleadings by the parties, the submissions, and the applicable law, I find the following issues as requiring this Court’s determination: i. Whether the Plaintiff's Application dated 24/2/2025 is barred by the doctrine of res judicata. ii. If not, whether the Plaintiff has satisfied the principles for adducing additional evidence. Whether the Application is Barred by Res Judicata 10. The core argument of the 2nd and 3rd Defendants is that the instant Application is res judicata because the issue of admissibility of the Supplementary List and Bundle of Documents dated 17/10/2024 was substantively heard, considered, and determined by this Court in its Ruling of 18th November 2024, which struck out and expunged the documents. 11. According to the Respondents, the instant application is a disguised Appeal seeking to re-litigate the same issue. They maintain that the application is barred by the doctrine of res judicata as enshrined under Section 7 of the Civil Procedure Act. 12. The Plaintiff's argument, on the other hand, is that the Ruling of 18th November 2024 merely addressed the production of documents that were filed without leave and expunged them on that basis. The Plaintiff contends that the Court did not hear or determine any application by the Plaintiff seeking leave to produce the documents or to recall the witness, which is the precise prayer in the instant Application. 13. Section 7 of the Civil Procedure Act on res judicata, provides as follows; “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16508/eng@2025-10-23 2

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competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 14. The provision is on the fundamental doctrine that there should be an end to litigation. The rationale for the doctrine of res judicata exists to protect public interest so that a party should not endlessly be dragged into litigation over the same issue or subject matter that has otherwise been conclusively determined by a court of competent jurisdiction. 15. The Court of Appeal in the case of [T]he Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR held that; “ [F]or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and finally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 16. From the above, it is clear that the doctrine of res judicata bars subsequent proceedings when a court of competent jurisdiction has determined the rights of parties on the matter in dispute. It applies not only to points actually adjudicated but also to every point which properly belonged to the subject of litigation and which the parties might have brought forward at the time. 17. Upon careful consideration of the instant application, I agree with the Plaintiff that this court’s ruling of 18th November 2024 was a decision on the admissibility and validity of the documents as filed, with the court finding that the documents were filed without leave and must be expunged. On the other hand, the instant application is for leave of the Court to file and produce the documents (which had previously been expunged) and to recall a witness. 18. While the practical effect of granting the current application would be to allow the documents back into the record, thus contravening the spirit of the previous ruling, the strict legal issue is different. The previous ruling determined that the Plaintiff could not introduce the documents as they were (without leave). The current application is a formal request for the leave that was lacking, which is a new procedural step. 19. Whereas the doctrine of res judicata is intended to bring finality to litigation, this court is of the view that it should not be applied so rigidly as to deny substantive justice where a new, procedurally correct step is taken by a party. Given that the previous decision was based on a procedural technicality (filing without leave), and the current application is to cure that defect by formally seeking leave, this Court finds that the strict requirements of res judicata (that the matter in issue was directly and substantially in issue in the former suit) are not perfectly met. 20. However, it is critical to point out that although the Application is not strictly res judicata, the Court views it as a thinly veiled attempt to reintroduce documents previously rejected and expunged. I agree with Defendants’ argument that the Plaintiff, having been granted leave to appeal, is now abusing https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16508/eng@2025-10-23 3

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the court process by attempting to circumvent the appeal process. However, the issue now shifts to whether the Court should exercise its discretion to allow the application. Whether the Plaintiff has satisfied the principles for adducing additional evidence. 21. Even where an application is not strictly res judicata, as in the instant case, the Court retains an inherent duty to administer justice and prevent abuse of its process. 22. The Plaintiff in support of the application, relies on the principles laid down in the Supreme Court case of Mahamud v Mohamad & 3 others [2018] KESC 71 (KLR) for allowing additional evidence. Although that case primarily dealt with evidence on appeal, I find those principles relevant in the present application. The principles are: a. The evidence must be directly relevant and in the interest of justice. b. It must be such that it would influence or impact the result, though not necessarily decisively. c. It must not be voluminous or difficult for the other party to respond to. d. The court must consider the proportionality and prejudice of allowing the evidence. 23. On the question of relevance and impact of the evidence to be admitted, I note that the documents are demand letters and an affidavit of service. The Plaintiff argues these are relevant to proving compliance with the statutory requirement under Section 87(a) of the Kenya Railways (KRC) Act, which mandates a one-month notice before commencing a suit against the 3rd Defendant. Failure to prove compliance could affect the suit's outcome or the award of costs. The documents are, therefore, highly relevant and could impact the verdict or costs, thus satisfying the first two criteria. 24. Regarding the volume of the documents, I note that the documents are not voluminous (stated to be only 6 pages). I agree with the Plaintiff’s argument that the Defendants shall not suffer prejudice since they have been in possession of the original demand letters and have been aware of the same, well before the 18/11/2024 hearing. In any event, the Defendants will obviously have the opportunity to crossexamine the witness and are offered corresponding leave to file counter-documents. 25. Concerning prejudice to be suffered, I note that the case is still at the hearing stage. Any prejudice to the Defendants would be cured by granting them an opportunity to cross-examine the Plaintiff’s witness(s) on the same, with the opportunity to file any additional documents, if necessary. Conclusion 26. While the Plaintiff's instant application demonstrates a lack of respect for the court process, which is the basis of the Defendants' preliminary objection, the paramount consideration under the Constitution and Civil Procedure Act is the administration of substantive justice without undue regard to procedural technicalities. To deny the Plaintiff the opportunity to prove a statutory requirement that goes to the heart of their claim or an award of costs, based on a procedural defect that they are now trying to cure, would be to elevate form over substance. 27. I fully associate with the view expressed by the Court of Appeal in the decision of DHL Worldwide Express Kenya Ltd v Mutuma [2024] KECA 938 (KLR) that: “ In any form of dispute resolution before a court of law, a court is called upon to do and be seen to do justice to all the parties concerned. Courts are obliged to provide a level playing field for parties and not be seen to favor one party against the other. If one party benefits https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16508/eng@2025-10-23 4

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from a pardon, then the other party should similarly enjoy such benefits; otherwise, a court will be seen to be biased. 28. In balancing the need for finality of court orders and the overriding objective of facilitating the just resolution of disputes, the scale tips towards admitting the evidence, subject to appropriate conditions to address the procedural history and the Defendants' legitimate concerns. 29. The correct course, in my view, therefore, is for this Court to allow the Plaintiff to rectify the procedural error by granting the leave sought. The prejudice to the Defendants is minor, as the documents are not complex and they have been aware of them for months. 30. Accordingly, the Court makes the following orders: i. The 2nd and 3rd Defendants' Preliminary Objection dated 07/03/2025 is hereby dismissed. ii. The Plaintiff's Application dated 24/2/2025 is allowed on the following terms: a. The Plaintiff is granted leave to formally file, adopt, and produce the documents contained in the Plaintiff's Supplementary List and Bundle of Documents dated 17/10/2024 and filed on 25/10/2024. b. These documents specified in (a) above are deemed to have been duly filed as of the date of this Ruling. c. The Plaintiff's witness, Liu Jinyu, shall be recalled for the sole purpose of producing and being examined-in-chief on the aforesaid additional documents. d. The Defendants shall have the right to cross-examine the witness on the additional documents, and the Plaintiff shall have the right of re-examination. e. The 2nd and 3rd Defendants are granted leave to file and serve any Supplementary List and Bundle of Documents in response to the Plaintiff's additional documents within fourteen (14) days of the date of this Ruling. 31. Given the procedural history and the necessity of this Application to rectify a procedural omission by the Plaintiff, the costs of the Application dated 24/2/2025 are awarded to the 2nd and 3rd Defendants/ Respondents in any event. 32. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 23RD OCTOBER 2025 ADO MOSES JUDGE In the presence of: C/A – Moses Ondego h/b for Ndegwa…………..for the Applicant Kamande h/b for Agwara………..... for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16508/eng@2025-10-23 5

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