Toyota Kenya Limited & 1 other v Maria Solo Smith Mbosyo (suing As The Legal Representative of The Estate of The Late Titus Solo Kimuli – Deceased) & 2 others

there was a list of witnesses, they had never been served with the list of documents or witness statements. The orders made by the court were therefore as follows: “ There being no prove of service of the supplementary list of documents and witness statement then this court is inclined to find that the plaintiffs case proceeded without full disclosure of what the defence witnesses will be coming to say. It will therefore be prejudicial to the plaintiff to allow statements that were not served upon the plaintiff to be used after the plaintiff has closed his case. In the circumstances then the witness statement that were filed and not served are deemed not properly on record and cannot be substituted. The essence of all this is that the witness statements filed by the defence and not served are struck off the record. There being no witness statement and no document filed then there is no witness to call at this point.” 3. It was at that point that counsel for the 3rd and 4th Defendants stated to court that they had closed their case and the court made orders for parties to file their submissions. 4. The Appellants being dissatisfied appealed the ruling through the Memorandum of Appeal dated 21st November 2024 on grounds that the learned magistrate erred in law and in fact in striking out the 3rd and 4th Defendants’ Supplementary list of Witnesses and Witness statements dated 25th July 2023 thereby condemning the 3rd and 4th Defendant unheard, in failing to take into consideration the provisions of Article 159 (2) (d) of the Constitution of Kenya 2010, and in condemning the 3rd and 4th Defendants unheard. 5. The Appellants prayed for orders that the appeal be allowed, that this court be pleased to reinstate the 3rd and 4th Defendants’ Supplementary List of Witnesses and Witness Statements and the 3rd and 4th Defendants’ case be reopened and heard on merit, that the Respondents do pay the costs of this appeal and costs in the lower court, and that such further relief as may appear just to the court. 6. The appeal was canvassed by way of written submissions. The Appellants in their submissions dated 4th April 2025 argued that Order 2 Rule 15 of the Civil Procedure Rules lays down the principles that guide courts in the discretionary powers of striking out pleadings. That the discretionary powers should be exercised with utmost caution as was held in Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR). 7. The Appellants stated that failure to serve the 1st Respondent is a procedural technicality that should not impede determination of the matter on merit. Reliance was placed on decisions in James Kanyiita Nderitu & another v Marios Philotas Ghika & another [2016] KECA 470 (KLR) and St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] KEHC 2539 (KLR). 8. The Appellants submitted that striking out the 1st and 2nd Appellant’s Supplementary List of Witnesses and Witness Statements drove the Appellants from the seat of justice and condemned them unheard contrary to the spirit of Article 159 (2) (b) of the Constitution. That no prejudice will be suffered by the 1st Respondent who will have an opportunity to cross examine the witnesses. 9. The 1st Respondent in their submissions dated 21st May 2025 argued that the decision to strike out pleadings is a discretionary one and the same may not be set aside unless proven that the court misdirected itself as it was held in the case of Mbogo & another v Shah [1968] EA 93 which cited with authority the case of Pithoni Waweru Maina v Thuka Mugiria [1983] KECA 75 (KLR) and the case of Blue Shield Insurance Company Ltd v Joseph Mboya Ogutu [2009] KECA 221 (KLR) which cited with authority the case of Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and others (No. 3) (1970) ChpD. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4334/eng@2026-02-12 2

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10. The 1st Respondent stated that failure to obey court directions and failure to serve the Supplementary list of Witnesses and Witness Statement when the Plaintiff’s case had already been closed guided the court in its decision which need not be interfered with. 11. The 1st Respondent submitted that Order 2 Rule 15 of the Civil Procedure Rules has established clear principles which guide the court in the exercise of the power to strike out pleadings, which position has been reiterated in the case of Kivaga Estates Limited v National Bank of Kenya Limited (2017) eKLR. That when the matter came up for hearing on 18th March 2024, the Appellants never sought leave to file Supplementary list of Witnesses and Witness Statements, which were only filed on 18th June 2024 when the Plaintiff had only one witness left to testify on 19th June 2024. That this was an afterthought aimed to prejudice the 1st Respondent’s case by attempting to seal loopholes disclosed at the hearing. The 1st Respondent relied on the holding in the case of Yaron Gurevich v Carnation Plants Limited [2019] KEELRC 179 (KLR). 12. The 1st Respondent contended that the court is required to give effect to the overriding objective which is the just, expeditious, proportionate and affordable resolution of disputes. The 1st Respondent relied on the holding in the case of Kenya Commercial Bank Limited v Kenya Planters Co-operative Union (2010) KECA 302 (KLR). The 1st Respondent therefore prayed that indolence of the Appellant should not be aided by this court. Analysis 13. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 14. I have considered the Record of Appeal dated 26th November 2024 and submissions by the parties. The issues for determination are: a. Whether the 3rd and 4th Defendants’ Supplementary List of Witnesses and Witness Statements dated 25th July 2023 should be reinstated and whether the 3rd and 4th Defendants’ case can be reopened and heard on merit b. Who should bear costs 15. This court has perused the trial court proceedings and noted that on 7th March 2023, counsel for the 3rd and 4th Defendants indicated to court that the matter was coming up for pretrial and they requested for 45 days to comply. On 27th July 2023, a date that the matter had been slated for hearing, counsel for the Plaintiff informed court that they had not been served with any documents. On 7th August 2023, the 3rd and 4th Defendants had still not complied. 16. The Defendants were again granted 14 days to file further list of documents with corresponding leave to the Plaintiff to file. On 18th March 2024 when the matter came up for hearing, the Plaintiff’s witnesses testified and were cross examined. Further hearing of the Plaintiff’s case was on 19th June 2024 when PW4 testified and the Plaintiff closed their case. 17. Further on 19th June 2024, Ms. Mwangi Advocate for the 3rd and 4th Defendants indicated that they had 2 witnesses but wished to make an application to substitute one Gabriel Sachita with https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4334/eng@2026-02-12 3

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Catherine Kagumba as Gabriel had left employment. Mr. Mutugi Advocate for the Plaintiff opposed the application saying they had never been served with the said list of witnesses and witness statements. The court then gave the following orders which I reiterate for emphasis: “ There being no prove of service of the Supplementary list of documents and witness statements then this court is inclined to find that the Plaintiff’s case proceeded without full disclosure of what the defence witnesses will be coming to say. It will therefore be prejudicial to the Plaintiff to allow statements that were not served upon the Plaintiff to be used after the Plaintiff has closed their case. In the circumstances then the witness statements that were filed and not served are deemed not properly on record and cannot be substituted. The essence of all this is that the witness statement filed by the defence not served are struck off the record. There being no witness statement and no document filed then there is no witness to call at this point.” 18. On service of witness statements, Order 11 of the Civil Procedure Rules require parties to file and exchange witness statements in advance before hearing to promote fairness and transparency, avoid trial by ambush and enable parties to adequately prepare for cross examination and rebuttal. Therefore, witness statements filed but not served are deemed not properly on record and liable to be expunged. 19. Order 2 Rule 15 of the Civil Procedure Rules provides: 1. At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that: a. it discloses no reasonable cause of action or defence in law; or b. it is scandalous, frivolous or vexatious; or c. it may prejudice, embarrass or delay the fair trial of the action; or d. it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. 20. The decision to strike out pleadings is discretionary and an appellate court will not interfere with such discretion unless it is shown that the trial court acted on wrong principles, failed to take into account relevant considerations, took into account irrelevant matters or made a decision that was wrong or resulted in injustice as held in the case of Mbogo & another v Shah [1968] EA 93. 21. The Appellants’ Record of Appeal contains a Supplementary list of Witnesses dated 25th July 2023 and witness statements and another Supplementary list of Witnesses dated 18th June 2024. It is not disputed that the Appellants filed the former but failed to serve the 1st Respondent and that they filed the later without leave of court and after the 1st Respondent’s 3 witnesses had already testified and one witness was left to testify. 22. The Appellants also never gave a satisfactory answer as to why they failed to serve the 1st Respondent. The Appellants’ conduct in the mater is an indication of indolence on their part considering the fact that the matter in the trial court had previously come up for hearing in the absence of the Appellants for non-attendance and judgment delivered, which judgment was set aside to pave way for inter parte hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4334/eng@2026-02-12 4

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23. In view of the foregoing, this court has no doubt that the trial court took into account relevant considerations in striking out the impugned documents. There are no grounds upon which the discretion can be challenged. 24. On costs, there is no reason to deny the 1st Respondent costs, being the only Respondent participating in the appeal. Determination 25. This court therefore makes the following orders: a. The appeal lacks merit and is dismissed. b. The ruling of the trial court issued on 19th June 2024 is hereby upheld. c. Costs of this appeal to the 1st Respondent.. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Ms. Mwangi Advocate for the Appellants Mr. Umare Advocate h/b for Mr. Mutugi Advocate for the 1st Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4334/eng@2026-02-12 5

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