Wainaina & Karimi Advocates v Jane Wamuyu Mwai & 1 other

Grounds 5. The applicant’s gravamen is that it is not solely to blame for the delay in the hearing of the case as per the ruling of 28.5.2025. It pointed out that the court record shows that all prior adjournments were due to circumstances beyond its control. There include hearing dates falling during the court’s Easter, Christmas and August vacation recesses, transfer of the presiding judge, bereavement of counsel, interlocutory applications on jurisdiction and stay pending appeal. Therefore, it contended that the attribution of the delay to it was unfair. 6. The applicant also contended that it cannot be blamed for her erstwhile counsel’s withdrawal from the case following which it has to appoint another counsel. 7. The applicant posed that if the court was made aware of the reasons for the adjournments, it would not have shut the door of justice. It asserted that it has a constitutional right to adduce evidence and challenge the evidence against it. 8. The applicant submitted that the viva voce evidence that it seeks to adduce could not be procured on 28.5. 2025 as its key witness was undergoing medical treatment in South Africa on 27.5.2025. It asserted that the evidence is credible, directly relevant, and drawn from the first-hand account of the person who handled the transaction with both the plaintiff and the 1st defendant. 9. The applicant asserted that the re-opening of its case will facilitate a proper evaluation of the evidence, enable the court to address the real issues in controversy, and assist in reaching a just and reasoned decision. 10. The applicant further asserted that no prejudice will be occasioned to the other parties if the orders sought are granted. It added that the court has the jurisdiction and unfettered discretion to re-open a case and recall witnesses, and it is in the best interests of justice that this be done so that justice is not only done but seen to be done. 11. The applicant relied on: 1. 2. Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) Responses 12. The plaintiff argued that the application is an abuse of the court process, as it seeks to re-open issues already dealt with by the court on 28.5.2025. He also argued that the matter is res judicata as the court already declined an adjournment and directed the filing of submissions on 28.5.2025. 13. The plaintiff contended that the 2nd defendant is guilty of laches, because it filed the instant application long after the court’s direction that the parties proceed through written submissions. He highlighted that the applicant failed to secure the attendance of its three witnesses on the hearing date of 28.5.2025 and has offered no satisfactory explanation thereof. 14. The plaintiff further argued that the application has been overtaken by events as the judgment date has been set. It asserted that the applicant is trying to appeal through the back door by re-opening the suit instead of filing its submissions as directed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19250/eng@2025-12-17 2

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15. The 1st defendant highlighted that the applicant was given an opportunity to cross-examine its witness but expressly declined and thus cannot approbate and reprobate. She also contended that the applicant does not deserve the court’s discretion as it has severally disobeyed the court’s directions and orders. 16. The 1st defendant argued that she stands to be prejudiced if the suit is delayed further as she has been denied the purchase price for over 14 years while the 2nd defendant continues to enjoy the property. 17. The 1st defendant relied on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR) Analysis and Determination 18. The main issue is whether the application is merited. 19. The 1st defendant raised the preliminary issue of res judicata. However, the present application is a different subject matter. Therefore, res judicata is not applicable. Recalling of witnesses 20. Section 146 (4) of the Evidence Act provides that: “ The court may in all cases permit a witness to be recalled either for further examination-inchief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.” 21. The court’s power to re-open the case and to permit a witness to be recalled is discretionary. The discretion is however, exercised upon legal principle and circumstances of the case with the sole aim of serving substantive justice. Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR) 22. Nonetheless, the court should reject a request to re-call witnesses if the request was aimed at delaying the case. Vincent Otieno Otieno v Republic (Misc Cr. Appl. 36 of 2019). 23. The main grounds in support of the application under consideration is that the applicant is not to blame for all the previous adjournments in the matter and that it has a right to adduce evidence and challenge evidence against it. 24. On 28.5.2025, the applicant applied for adjournment of the hearing of the case based on appointment of new counsel and the absence of its director and witness due to medical treatment. In the rulings of 28.5.2025, the court declined the 2nd defendant’s applications observing that: “ “ 3. ...The record is replete with numerous instances where the case has been adjourned at the instance of the 2nd defendant. Last adjournments have been granted at the instance of the 2nd defendant culminating to my last order to the effect that: “No adjournment shall be granted to any party given the age of the matter”.” 26. The court already pronounced itself on the applications for adjournment based on same grounds that have been fronted in the application under consideration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19250/eng@2025-12-17 3

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27. Although the applicant pleaded that it was not to blame for all the previous adjournments, the record shows that it was. On 12.2.2025, the proceedings were adjourned to allow typing of the proceedings. The record also indicates that its erstwhile advocate, Mr. Wandabwa was not ready to proceed. 28. On 20.3.2025, Mr. Wandabwa indicated that he could not proceed. It is on that date that the court ordered that no adjournment would be granted due to the age of the matter. 29. The court found that there was no evidence to support the absence of the witness was on medical treatment. It also found that the applicant’s right to legal representation must be balanced with the respondent’s right to justice without delay, equal protection and benefit of the law. 30. The court also considered the applicant’s conduct. The applicant did not comply with the court’s order to deposit the balance of the purchase price in court. 31. The applicant has still not complied with the order which was meant to uphold a proportioned balance of the rights of parties. Where is good faith? The circumstances of the case are that, through the disobedience of court orders, the applicant has kept both the property and the balance of the purchase price. Most unfair and illegal conduct. He who comes to equity must come with clean hands. 32. In the court’s considered view, the intention of the applicant is to temporize this case for as long as he wishes to the detriment of the respondents. Thus, in the circumstances of this case, the respondents stand to suffer prejudice if the orders sought are granted. Disposal 33. In view of the foregoing, the court finds no merit in the application dated 27.8.2025. It is dismissed with costs to the respondents. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION ----------------F. GIKONYO M JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19250/eng@2025-12-17 4

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