Stephen Kiarie Njenga & Others v Isaac Njenga Kamunge & Others

supplementary list of documents, including the witness statements in question on 20th November, 2024. Analysis and Determination 4. In view of the above sentiments and submissions by respective counsels, this Court is tasked with determining:a. Whether the witness statements of Moses Ngochu Karethui and Richard Njau, both dated 18th November, 2024, should be expunged from the court record; and, b. Whether the interested party should be granted an extension of time to file their documents. 5. Having listened to all counsel on their arguments before court, it is an undisputed fact that the Plaintiff filed a supplementary witness statements dated the 18th November, 2024. According to the Respondent’s counsel Mr. Gachoka, these documents were filed without the leave of the court which is in contravention of the directions previously given by the court. On the other hand, M/S Kibebo contends that the documents form part of the earlier afidavits filed and that the Plaintiff was granted leave to file supplementary documents on the 20th November, 2024. 6. Upon a thorough review of the court records, it is clear that on the 11th November, 2024, the Plaintiff had indeed sought and was granted leave to file a supplementary list of documents. In my view, the court’s directions thereof did not expressly limit the filing of witness statements, and thus the documents in question were filed in accordance with the leave granted by the court. As a result, the witness statements form part of the Plaintiff’s evidence in support of their case. 7. It is important to note that the case is yet to proceed for full hearing, and the rules of natural justice dictate that each party should be allowed to present their best evidence before the hearing commences. Therefore, denying the Plaintiff the opportunity to have their witness statements admitted would be prejudicial and contrary to the principles of justice and fair hearing. Furthermore, it is worth noting that the Defendant and any opposing parties will not be prejudiced by the inclusion of the witness statements at this stage as they will have a full opportunity to cross-examine the witnesses and challenge the evidence, or to present counter-evidence in accordance with the rules of procedure. 8. In the case of Republic –vs- Kenya National Examinations Council [1997] eKLR, the court einforced this principle by emphasizing that a party should be given a fair opportunity to present its case and evidence, particularly when the trial has not yet commenced. The court held that the denial of an opportunity to submit evidence would violate the principles of natural justice and procedural fairness. 9. Further, the Court of Appeal in the case of Nyanjwa –vs- The Attorney General [2007] 2 EA 182 held that a party should not be shut out from presenting its best evidence merely due to procedural technicalities, particularly where the trial has not yet begun and the opposing party has the opportunity to respond. 10. Above all, Article 159 of the Constitution also supports this position by directing that justice should be administered without undue regard to procedural technicalities. The Article specifically states:“ In exercising judicial authority, the courts and tribunals shall be guided by the principles that justice shall be done to all, irrespective of technicalities, and that justice shall not be delayed.” 11. This constitutional provision therefore mandates courts to focus on achieving substantive justice rather than being overly rigid on procedural matters, especially when such rigidities may result in the exclusion of a party’s evidence. It is thus clear that the Plaintiff should not be denied the chance to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19277/eng@2025-07-11 2

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present their case in its entirety, particularly when no party will be prejudiced by the inclusion of the witness statements. 12. In light of the foregoing, the court finds that it is in the interest of fairness, justice, and in accordance with the principles set out under Article 159 of the Constitution for the witness the witness statements of Moses Ngochu Karethui and Richard Njau, to be retained on the record as the Defendants shall have the opportunity to expound on the same. 13. Lastly, with regard to the request by the Interested Party for more time to file its documents, it is noted that neither of the parties opposed this request. Therefore, in view of the court’s overriding objective to ensure the expeditious and fair determination of matters before it, as enshrined in Section 1A and 1B of the Civil Procedure Act, this Court finds it unnecessary to further elaborate on this issue. However, in order to facilitate the speedy hearing and resolution of this matter, the Interested Party is granted fourteen (14) days to comply with the filing requirements. 14. For avoidance of doubt, the following directions issue:a. The witness statements of Moses Ngochu Karethiu and Richard Njau both dated 18th November, 2024 are hereby admitted on record in support of the Plaintiff’s case. b. The Interested Party be and is hereby granted twenty one (21) days leave to file and serve any documents and or evidence in support of its case. c. The other parties be at liberty to file and serve any documents and or evidence in response to either opposing party may have filed by close of business on 15th August, 2025. d. Mention on 18th August, 2025 before the Deputy Registrar for parties to confirm compliance and take further directions. e. Failure by either party to comply with directions and timelines issued herein will automatically render their pleadings expunged from the record. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 11TH DAY OF JULY , 2025. (TO BE UPLOADED VIA ELECTRONIC MAIL) D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19277/eng@2025-07-11 3

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