Vwt v Etm

3. The procedural anomaly precipitating this Application occurred during the trial proceedings on 21 January 2026. The Plaintiff took the stand and was led in her examination-in-chief by her counsel on record, Mr. Peter Njuguna Kimani. However, a critical deviation from standard trial procedure occurred: the Plaintiff's Counsel concluded the examination-in-chief and tendered the witness for cross-examination without formally leading the Plaintiff to produce the 23 documents contained in her pre-filed Trial Bundle, dated 24 October 2025, as exhibits. 4. Consequently, the Defendant's Counsel, Mr. Mwangi Ndirangu, proceeded to cross-examine the Plaintiff based on the oral testimony adduced. Upon the conclusion of the cross-examination, the Plaintiff's Counsel attempted to introduce the pre-disclosed documents as exhibits, prompting an immediate and vehement objection from the Defendant's Counsel, who argued that the evidentiary window for the production of exhibits had formally closed. The Court directed the parties to formally file written applications and affidavits regarding the contested admission of the documents, culminating in the present Application supported by the Affidavit of Mr. Kimani. 5. The Defendant opposed the application through a Replying Affidavit sworn on 2 February 2026. 6. Oral highlights on the application were canvassed before the Court on 25 February 2026, with the 2nd Interested Party, HF Group, electing not to participate in the interlocutory proceedings. 7. The core dispute demands a delicate balancing exercise by the Court: reconciling the mandatory procedural sequence of evidentiary production prescribed by the Evidence Act against the constitutional imperatives of substantive justice and fair hearing enshrined in Article 159(2)(d) and Article 50 of the Constitution. 8. The Applicant approaches the Court invoking its inherent jurisdiction to make such orders as may be necessary for the ends of justice, aiming to prevent the abuse of the court process. The primary relief sought is leave to produce the documentary evidence listed in the Trial Bundle and, correspondingly, leave for the Defendant and Interested Parties to further cross-examine the Plaintiff on the admitted exhibits if they so desire. 9. The factual basis of the Application is gracefully conceded by the Applicant's counsel as an inadvertent procedural blunder. Mr. Kimani deposes that he operated under the mistaken belief that, having fully complied with the pre-trial discovery protocols under Order 11 of the Civil Procedure Rules 2010— where full discovery has been executed between the parties—the documents could be formally marked as exhibits at the close of the witness's testimony. It is argued that this oversight was strictly a mistake of counsel, which ought not to be visited upon the innocent litigant, particularly where the documents are absolutely critical to the outcome of a complex matrimonial property dispute. 10. The Applicant's legal framework relies heavily on the overriding objectives and the constitutional directive to administer justice without undue regard to procedural technicalities. During oral submissions, Counsel emphasized that while procedure is the handmaiden of justice, it must not become a slave master that subverts substantive justice. The Applicant contends that no prejudice or trial by ambush can be claimed by the Defendant, as the 23 documents were filed and served well in advance via the October 2025 Trial Bundle, meaning the defence was fully cognizant of the documentary universe of the Plaintiff's case. 11. To fortify this position, the Applicant submitted a digest of Authorities. 12. The Applicant concludes that excluding the core documentary evidence of a matrimonial property claim due to counsel's sequencing error would torpedo the entire case, resulting in a grave miscarriage of justice and defeating the very purpose of the judicial truth-seeking process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3561/eng@2026-03-18 2

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13. The Defendant mounts a vigorous opposition to the Application, characterizing it as a legal casualty fatally defective, procedurally malnourished, and a daring attempt to invite this Court to preside over a trial by ambush. The Respondent’s core argument rests on the sanctity of the adversarial trial process, the statutory sequence of witness examination, and the overarching doctrine of finality in litigation. 14. Through his Replying Affidavit, the Defendant relies on section 146(1) of the Evidence Act, which mandates the specific, unalterable sequence of examination: "Witnesses shall first be examined-inchief, then, if the adverse party so desires, cross-examined...". The Defendant posits that it is a basic tenet of the law of evidence that the formal production of exhibits must exclusively occur during the examination-in-chief. By seeking to introduce documents after having been subjected to crossexamination, the Applicant is accused of attempting to mend the net after the fish have escaped. 15. The Defendant utilizes vivid analogies to illustrate the perceived absurdity of the Applicant's request, comparing it to a football team attempting to substitute players retroactively for the first half after realizing they are losing, or a student attempting to retrieve an exam script from the examiner after discussing the answers over lunch. The underlying legal assertion is that cross-examination serves as the ultimate constitutional stress test for a party's evidence. Allowing a party to rebuild their case after the structural integrity of their oral evidence has been tested and found wanting compromises the constitutional right to a fair trial under Article 50 of the Constitution. 16. Furthermore, the Respondent challenges the Applicant's reliance on Article 159(2)(d) of the Constitution. The Defendant argues that the Oxygen Principles and the constitutional shield against technicalities were never intended to act as a sanctuary for procedural deviants. During oral submissions, defence Counsel emphasized that procedural rules are the essential handmaidens of justice and must be strictly adhered to, asserting that the Plaintiff had ample opportunity to put her house in order but failed to do so. 17. The Defendant claims incurable prejudice if the Application is granted. The defence strategy was purportedly built strictly upon the oral evidence the Plaintiff chose to present during her examinationin-chief. Allowing the retroactive introduction of 23 exhibits would force the defence to re-litigate issues already covered, precipitating a cyclical trial process, violating the doctrine of finality, and escalating costs in a matter that requires expeditious disposal. Analysis & Determination 18. The foundational dispute in this Application concerns the rigid interpretation of evidentiary sequencing versus the flexible application of procedural rules to ascertain the truth. The Respondent correctly asserts that section 146(1) of the Evidence Act prescribes a mandatory sequence for the examination of witnesses. The statute provides that witnesses shall first be examined-in-chief, followed by cross-examination, and concluding with re-examination. The traditional adversarial practice dictates that a party must lay the foundation for and formally produce all documentary exhibits during the examination-in-chief, allowing the opposing party to cross-examine the witness on those specific documents immediately thereafter. Once the witness is tendered for cross-examination, the evidentiary universe of that witness is ostensibly closed, subject only to clarifications during re-examination. 19. If the Court's analysis were to begin and end at section 146(1), the Respondent's objection would carry the day. However, statutory interpretation requires that legislation be read holistically. The rigidity of section 146(1) is immediately tempered by the broad discretionary powers granted to the trial court in the subsequent subsections of the very same statute. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3561/eng@2026-03-18 3

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20. The power to recall a witness to adduce further evidence—including documentary evidence—is highly discretionary and must be exercised judiciously to serve the interests of substantive justice. 21. In the case of Kenya Pipeline Company Limited v Judiciary of Kenya & 2 others [2022] KEELC 12757 (KLR) (29 September 2022) (Ruling), the Court delineated the legal principles for recalling a witness to produce additional documentary evidence. The Court held that section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules provide the statutory authority for the court to permit a witness to be recalled, especially when read in tandem with the constitutional mandate of Article 159(2)(d) to deliver substantive justice. The Court emphasized that the principles of natural justice and the right to a fair hearing under Article 50 ensure that proceedings remain equitable, providing parties with a full opportunity to present their case. 22. More specifically, in Jones Alaka Kimatu v Joseph Kimatu eKLR, the Court evaluated a strikingly similar scenario. A plaintiff sought leave to be recalled as a witness to file and formally produce supplementary documents (including a sale agreement and a title deed) that were inadvertently omitted during the initial testimony. The defendant opposed the application, arguing it was an afterthought that would cause prejudice. The Court ruled in favour of the plaintiff, holding that section 146(4) of the Evidence Act and Order 18 Rule 10 permit such a recall, particularly when the opposing party's case has not yet closed, thereby neutralizing the claim of irreversible prejudice. 23. Similarly, in Lydia Kaguna Japeth v Homeland Express Limited & 6 others KEELC 6163 (KLR), the Court allowed an application to reopen the plaintiff's case to recall a witness and introduce a forensic document examination report under section 146(4) of the Evidence Act. The court emphasized that while the power is discretionary, the overarching goal of the judiciary is the ascertainment of truth. 24. The Respondent's rigid reliance on the strict sequence of section 146(1) ignores the ameliorative legislative intent of section 146(4). The legislature foresaw that human error, oversight, or the emergence of new facts might necessitate a deviation from the linear progression of a trial. The procedural lapse by the Plaintiff's counsel, while undoubtedly a breach of standard practice, does not strip this Court of its statutory jurisdiction to recall the Plaintiff for further examination-in-chief to formally mark the exhibits. 25. The Respondent invokes a potent metaphor: that a party should not be allowed to "mend their net" after the evidence has been tested in cross-examination and the "fish have escaped". This doctrine finds its roots in seminal cases such as Selle v Associated Motor Boat Company Ltd EA 123, where appellate courts cautioned against allowing parties to reconstruct their cases after discovering the weaknesses exposed by the adversary. 26. The rationale behind prohibiting the mending of nets is to prevent a trial by ambush and to uphold the fairness of the adversarial process. If a plaintiff's testimony is severely compromised or dismantled during cross-examination, they cannot simply invent new documents, theories, or witnesses to patch the substantive holes in their evidence. This principle was recently affirmed in Susan Wavinya Mutavi v Isaac Njoroge [2020] eKLR, where the Court denied a plaintiff's application to reopen a case to produce documents specifically intended to rebut the defendant's evidence after the defence had already testified. The court noted that reopening a case merely to fill evidentiary gaps exposed by the defence is highly prejudicial and subverts natural justice. 27. However, the Court must critically examine whether the present factual matrix equates to mending a net or conducting a trial by ambush. The defining characteristic of an evidentiary ambush is the element of surprise—the sudden introduction of previously concealed material that catches the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3561/eng@2026-03-18 4

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opponent off guard, denying them the opportunity to prepare an adequate defence or formulate an effective cross-examination strategy. 28. The record before this Court decisively negates the element of surprise. The Applicant seeks to produce 23 documents that were already meticulously compiled, paginated, and served upon the Respondent in the Plaintiff's Trial Bundle dated 24 October 2025. Under Order 11 of the Civil Procedure Rules 2010, modern Kenyan civil litigation transitioned from a system of trial by ambush to a system of “cards face up on the table." The front-loading of evidence via witness statements and trial bundles ensures that all parties are intimately aware of the documentary universe of the dispute long before the first witness takes the stand. 29. The Defendant cannot plausibly claim that the formal production of these 23 pre-disclosed exhibits constitutes an ambush. The Defendant's counsel prepared for trial, and executed the crossexamination, fully aware of the existence, contents, and intended evidentiary purpose of these documents. The failure to formally mark them during the examination-in-chief was a mechanical failure of procedure by the advocate, not a substantive alteration of the Plaintiff's factual case or the introduction of novel evidence. 30. The Respondent claims that his defence strategy was built on the evidence the Plaintiff chose to present and that introducing these documents now would force him to re-litigate issues. This argument is legally fragile. A defence strategy built exclusively on capitalizing on an opponent's inadvertent failure to formally tender a pre-disclosed document is a strategy built on procedural opportunism, not substantive merit. As famously articulated by the Court of Appeal in Ferdinand Ndung'u Waititu v Independent Electoral & Boundaries Commission & 8 Others (Civil Appeal No. 324 of 2013), crossexamination is a critically important part of the trial, and the Court must be extremely circumspect before inhibiting the ability to conduct a trial on the substantive evidence. A trial must be won or lost on the substantive weight of the evidence, not on a moment arising from a sequencing error regarding pre-disclosed material. 31. Because the documents were pre-disclosed, and critically, because the Defendant has not yet opened his case or called his own witnesses, the prejudice to the Defendant is entirely curable. The cure lies not in shutting out the evidence and determining a complex matrimonial dispute in a factual vacuum, but in permitting the Defendant the unrestricted right to subject the Plaintiff to further cross-examination specifically concerning the newly marked exhibits. 32. The Applicant urges the Court to invoke Article 159(2)(d) of the Constitution, which mandates that justice shall be administered without undue regard to procedural technicalities, as well as the overriding objectives under sections 1A and 1B of the Civil Procedure Act. 33. The Respondent is entirely correct that Article 159(2)(d) is not a magic wand that cures all procedural indiscipline or indolence. The Supreme Court has repeatedly cautioned against the abuse of this provision. In Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others (Petition 14 of 2013) eKLR, the apex Court held that "Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do is to be guided by the principle that 'justice shall be administered without undue regard to technicalities.' It is plain to us that Article 159(2) (d) is, therefore, applicable on a case-by-case basis". 34. Recognizing that Article 159(2)(d) is not a panacea does not mean it is a dead letter. The distinction lies in the nature of the procedural breach and its impact on the substantive rights of the parties. As articulated in Njagi Wanjeru & Company Advocates v County Secretary, Nairobi City County KEHC 3918 (KLR), where the failure to comply with a rule does not undermine the jurisdiction of the Court, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3561/eng@2026-03-18 5

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affect the core of the dispute, or prejudice the parties in an incurable way that leads to a miscarriage of justice, Article 159 must be invoked to aid the court in dispensing substantive justice. 35. Accordingly, the Notice of Motion dated 22 January 2026 is found to possess merit and is hereby allowed. To balance the scales of justice and mitigate any procedural inconvenience occasioned to the Defendant, the Court issues the following orders: i. The Plaintiff is granted leave to be recalled to the witness stand for further examination-inchief strictly and solely for the purpose of formally tendering and producing the documentary evidence marked as Exhibits 1 through 23, as listed in her Trial Bundle dated 24 October 2025. ii. Following the formal production of the said exhibits, the Defendant/Respondent and the Interested Parties are granted the unrestricted right to conduct further cross-examination of the Plaintiff specifically concerning the newly admitted exhibits, pursuant to section 146(4) of the Evidence Act; iii. Following the further cross-examination, the Plaintiff's Counsel shall be at liberty to conduct re-examination in accordance with standard procedure. iv. The Plaintiff/Applicant shall bear the costs of this Application and the costs occasioned by the recall of the witness, assessed at Kshs. 20,000/=, payable to the 1st Respondent prior to the next scheduled hearing date. DATED AND DELIVERED AT NAIROBI THIS 18 DAY OF MARCH 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: for the Applicant : Mr Kimani for the Respondent and 1st Interested Party : Mr. Mwangi Ndirangu for 2nd Interested Party : Ms Mbiro Court Assistant : Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3561/eng@2026-03-18 6

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