Kamiguru Education Centre v Pgm (minor Suing Through Her Next Friend) Amm) & 1 other

The Appeal: 5. 6. Aggrieved by the said ruling the appelalnt lodged a Memorandum of Appeal dated 25th February 2025 which set out the following grounds: a. That the learned trial magistrate erred in law and in fact in declining to grant th appelalnt time to summon a police officer to produce documents and / or give evidence on behalf of the appelalnt. b. That the learned trial magistrate failed to note that at paragraph 5 of the defence, the appelaltn had intimated an intention to rely on police investigatiosn which courld only be adduced pursuant to summons being issued by the court. c. That the learned trial magistrate failed to appreciate that police investigations and findings are not w ithin the reach of the appelalnt hence the police file, occurrence book records and documents could not be filed by the appelalnt but could only be produced in court pursuant to summons. d. That the learned trial magistrate erred in law and in fact in failing to consider the appelant’s submissions on the request for summons and for time to call the police hence condemned the appelalnt unheard. The appellant thus sought the following orders: a. This appeal be allowed and the ruling of the trial magistrate be set aside. b. The appellant’s case be re-opened and the appellant be granted summons to the traffic police officers – Nkubu Traffic Base to produce Occurrence Book Number 14 of 26/08/2022 c. The costs of this appeal be awarded to the appellant. Appellant’s Submissions 7. It was submitted tha the appeal was merited as the appellant had in its defence intimated that it would call a police officer to give evidence regarding the investigations on the accident. As such, it was argued, the finding that the appellant’s application was an ambush had no basis. 8. It was further submitted that under Order 16 Rule 6 of the Civil Procedure Rules the court has powers to summon any person whose attendance is necessary for the determination of the case. The appelalnt further cited section 22 of the Civil Procedure Act. 9. It was further submitted that the appellant’s evidence lay with the police whom it did not have control over. That the trial court ought to have allowed the adjournment sought. 10. It is further submitted that Order 11 of the Civil Procedure Rules is meant to facilitate pre-trial dislcosure and expedite case management but it cannot be interpreted or applied strictly in situations involving involuntary witnesses or witness not in control of a party. 1st respondent’s submissions 11. It was submitted that in the process of complying with Order 7 Rule 5 the appellant only filed a memorandum of Appearance and a statement of defence. That this was contrary to the said Rule which clearly states that a defence and counterclaim shall be accompanied by : a)An affidavit under Order 4 rule 1(2) where there is a counter claim; b)A list of witnesses to be called at the trial; c) Written https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7664/eng@2026-06-02 2

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statements signed by the witnesses except expert witnesses; d)Copies of documents to be relied on at the trial. 12. It was the respondent’s position that the appellant has not met the threshold to allow it to introduce new evidence either by viva voce evidence or documentary and this court should not condescend such laxity. The respondent cited the following cases to support its submissions; a. Govani vs Shah & Another; Jaff (Third Party) [2024] KECA 1775 (KLR) b. Johana Kipkemei Too vs Hellen Tum [2014] eKLR c. Tana And Athi Rivers Development Authority vs Jeremiah Mwakio & 3 Others [2015]Eklr 2nd respondent’s submissions 13. It was submitted that the appellant had sought for summons to call a police officer to produce an occurrence book that had not been filed as part of their documents and this amounted to trial by ambush. The respondent cited the case of Mathare Investments and Properties Ltd vs Mparo and 5 Others (2025) KEELC 7787 (klr), Intractive Gaming and Lotters Limited vs Flint East Africa Limited (2013) e KLR and National Bank of Kenya Limited -vs- John Aswani Nairobi HCCC No. 171 of 2016. 14. It was submitted that since the plaintiff had already closed her case, she would not have the opportunity to respond to any new evidence that would be introduced by the defence at that stage of the trial. Analysis and Determination 15. The appeal herein is basically on the order of the trial court that disallowed the appellant’s application for adjournment in order to call the police officer. 16. The Civil Procedure Rules are meant to provide the applicable procedure in civil cases. They are meant to ensure an organised or structured manner in which parties come to court, address the court and avail their evidence. 17. Order 7 Rule 5 of the said Rules cited by the 1st respondent provides for the documents to be filed by a defendant who has entered appearance and filed defence. The appellant did not file any of such documents. 18. Order 11 of the Civil Procedure Rules was put in place to ensure that the parties have knowledge of what each will avail in court as evidence and thus offers it time and opportunity to address such evidence. 19. In the instant case, the pre-trial was done. The appellant did not file any list of documents or witnesses. It relies on the averment of paragraph 5 of its defence which, it submits, was sufficient notice to the other parties. 20. In my view, the appellant may be faulted for not having complied with the rules but the situation was understandable. The witnesses intended to call were not its own witnesses. Being a police officer, the appellant had no control over the custody of the Occurrence Book or other documents forming the police investigations. It could only avail the same in court through summons by the court to the relevant police officer or station. 21. I think that the trial court ought to have exercised some indulgence, given these circumstances. 22. As correctly stated by the appellant, the Rules are not cast in stone. There can, where appropriate be circumstances when strict enforcement does not serve justice at all. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7664/eng@2026-06-02 3

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23. Again there would have been no prejudice caused since the other parties would have had the opportunity to cross-examine the witness. The court would have exercised its power to recall the plaintiff’s witnesses under Order 18 Rule 10 of the zcivil Procedure Rules, if moved accordingly or on its own motion. 24. Having examined the matter, and the crucial evidence that stood to be adduced by the police, I am inclined to allow the appeal and accept the appellant’s plea to set aside the orders of the trial court. 25. The same are subsituted with an order re-opening the 1st appellant’s case and allowing the appellant to apply for witness summons to the intended officer. The trial court shall deal with the witness and others as provided for under the rule and Evidence Act. 26. There shall be no orders as to costs in this appeal. 27. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE 2026. ………………………… H. M. NYAGA JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7664/eng@2026-06-02 4

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