Anti-corruption and Economic Crimes Division v Dr. Evans Kidero & 4 others

JAMES MIMI MBUGUA……………….……12TH DEFENDANT/RESPONDENT ELIZABETH WANJIRU NDERITU……..….…13TH DEFENDANT/RESPONDENT ALICE NJERI MUNDIA………………….……14TH DEFENDANT/RESPONDENT RULING 1. Before the Court is an Application dated 11th May, 2026, by the 7th Defendant/Applicant, brought under Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, Order 8 Rule 2 and Order 51 of the Civil Procedure Rules, and all other enabling provisions of the law, which seeks the following orders; a) Spent. b) THAT this Honourable Court be pleased to grant leave to the 7th Defendant/Applicant to file a further List of Documents in his Defence. c) THAT costs to abide the outcome of the suit. 2. The Application is anchored on the grounds set out therein and in the Affidavit of Aduma Joshua Owuor, sworn on the same date, together with his Supplementary Affidavit, sworn on 25th May, 2026. 3. In brief, the Applicant seeks to file a Supplementary List of Documents in his defence despite the suit herein having progressed. He avers that the suit herein was brought against him on various grounds, including the payment of Kshs. 58 million shillings to the firm of Wachira Mburu Mwangi & Co. Advocates, and other related grounds. The subject of the claim herein was the subject of criminal proceedings in Criminal Case No. 17 of 2019, which case has since been determined following ACEC SUIT NO. E008 OF 2021- RULING 2

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the prosecution's availing of the necessary witnesses and documents in support thereof, resulting in his acquittal vide the judgment delivered on 30th October, 2025. The Plaintiff herein, being the Complainant in the said case and having participated, was aware of the Judgment, and as such, no prejudice will be occasioned should leave be granted to introduce the said Judgment. In his Supplementary Affidavit, he further avers that the said judgment is in the public domain, that the 7th Defendant/Applicant is not asking the Court to make a determination on the basis of that judgment, that the Court will have the chance to interrogate his evidence in totality, and that the admissibility or otherwise will be discerned during his defence. 4. Regarding the delay in filing the said judgment as part of his evidence, the Applicant contended that the delay was due to two changes in the bench handling the matter. Following the directions of the current bench on how to proceed after the proceedings were typed, it was not known to them how the matter would proceed. 5. The Applicant thus urged the Court to allow the Application as prayed. 6. The Application was opposed by the Plaintiff/Respondent vide a Replying Affidavit sworn on the 19th of May 2026 by Mulki Umar. He averred that the Applicant seeks to introduce the said Judgment, whereas the suit herein has significantly progressed, with the Investigating Officer having testified and awaiting crossexamination. The Applicant has not provided any basis for not producing the said Judgment earlier, despite its being delivered ACEC SUIT NO. E008 OF 2021- RULING 3

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in October last year; hence the Application is intended to delay the suit herein. 7. It was also averred that the criminal suit was in respect of Kshs. 10 million, provided as part payment of the Kshs. 68 million to the firm of Wachira Mburu Mwangi & Co. Advocates for purported legal services, whereas this case concerns Kshs. 58 million paid to the said firm after an advisory was issued not to pay the balance. 8. The Plaintiff/Respondent further deposed that the standard of proof in a criminal suit differs from that in a civil court, and, as such, the acquittal of the 7th Defendant/Applicant does not constitute prima facie evidence that the payments were lawful and/or regular and incapable of recovery in civil proceedings. Further, the said Judgment is inadmissible under section 46 of the Evidence Act, as it relates to the guilt or otherwise of the accused persons, and it is not in rem. 9. It was therefore deposed that the Application lacked merit and ought to be dismissed with costs. 10. The Application was canvassed by way of Written Submissions. 7th Defendant/Applicant’s Submissions 11. The 7th Defendant/Applicant filed written submissions dated 8th June, 2026. He submitted that the Court has broad authority under Order 8 of the Civil Procedure Rules to allow amendments at any stage of the proceedings, provided that they do not cause unfair prejudice to the opposing party. 12. It was reiterated that no prejudice will be caused to the Plaintiff/Respondent, who has yet to close its case and will ACEC SUIT NO. E008 OF 2021- RULING 4

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therefore have adequate time to prepare and cross-examine him on the said judgment. 13. Reliance was placed on the cases of Andrew Ouko v Kenya Commercial Bank Limited & 3 others (2014) eKLR and Dry Associates Ltd v Multiple Hauliers (EA) Ltd and another, HCC No. 419 of 2018 [2023] KEHC 23542 (KLR), to support the notion that amendment of pleadings is meant to give the Court an adequate opportunity to determine the real issues in dispute, and that denying such leave should be a last resort and only on sufficient cause. Plaintiff/Respondent’s Submissions 14. The Plaintiff/Respondent, on the other hand, filed written submissions dated 9th June, 2026. The Plaintiff submitted that the application lacked merit, reiterating the contents of their Replying Affidavit. 15. It was their submission that the suit herein relates to Kshs. 58 million, whereas the judgment sought to be introduced relates to Kshs 10 million and, as such, lacks relevance to the matters for determination in this suit. 16. It was also submitted that section 193A of the Criminal Procedure Code provides that recovery proceedings are independent of criminal proceedings and can be maintained regardless of whether a criminal prosecution is commenced, succeeds, fails, or results in an acquittal. 17. They therefore argued that the judgment is inadmissible, and possesses little or no probative value in these proceedings. The Court was therefore asked to dismiss the Application with costs. ANALYSIS AND DETERMINATION ACEC SUIT NO. E008 OF 2021- RULING 5

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18. I have considered the Application, the Response, the rival submissions and the law. The sole issue for determination is whether this Court should grant the Applicant leave to file the Supplementary List of Documents at this stage. 19. The Applicant invokes the inherent jurisdiction of this Honourable Court and seeks to be allowed to file additional documents after the close of pleadings, having regard to the Plaintiff's significant progress in the hearing. He argues that the Plaintiff was aware of the Judgment sought to be introduced, having participated therein, and thus no prejudice will be occasioned. 20. The Respondent, on the other hand, argues that the Judgment sought to be introduced is being introduced late in time after it has significantly prosecuted its case, and that it would have little to no probative value, as it relates to different amounts and the standard of proof in the Judgment sought to be introduced was different. They also argue that the said judgment is inadmissible under Section 46 of the Evidence Act. 21. Section 3A of the Civil Procedure Act provides as follows; “Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 22. The Supreme Court in the case of Mohammed Abdi Mohamud -v- Ahmed Abdulahi Mohamud & 3 Others, Supreme Court Petition No 7 Of 2018 as consolidated with No 9 of 2018 [2018 eKLR], laid down the following principles in considering the filing of additional evidence; ACEC SUIT NO. E008 OF 2021- RULING 6

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d) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice. e) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice. f) It must be such that if given, it would influence or impact upon the result of the verdict although it need not be decisive; g) It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; h) Where the additional evidence sought to be addressed removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; i) The evidence must be credible in the sense that it is capable of belief; j) The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; k) Whether a party would reasonably have been aware of and procured the further evidence in the cause of trial is an essential consideration to ensure fairness and due process; l) Where the additional evidence disclose a strong prima facie case of willful deception of the court; ACEC SUIT NO. E008 OF 2021- RULING 7

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m)The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filing gaps in evidence. The court must find the further evidence needful; n) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case in appeal, full up omissions or patch up the weak points in his/her case; o) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. 23. Whereas the said guidelines were provided in relation to filing additional evidence at the appellate stage, the Court in Okwara v Ouma [2024] KEELC 13392 (KLR) stated as follows; “The available jurisprudence suggests, however, that in order to do substantive justice to the parties in the matter before it, the court should lean towards allowing additional evidence especially in a case such as this one where the trial has not even commenced and where the other party will have adequate opportunity to rebut such additional evidence.” 24. Additionally, in the case of Ongeri vs. Skytop Technologies Ltd [2019]eKLR the Court while dealing with rule 14 (10) of the Employment and Labour Relations Court (Procedure) Rules, 2016 stated as follows; ACEC SUIT NO. E008 OF 2021- RULING 8

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“This rule empowers the Court to permit the introduction of additional documents onto the Court record even after the pre-trial conference stage. In exercising this power at this preliminary stage, the Court is not, in my humble view, concerned with the evidential value of the documents that are sought to be introduced. This is a matter that is best left to the trial process. All that the court needs to consider at this stage is the relevance of the documents to the dispute, the reason for the delayed filing of the documents and the possible prejudice that the opponent may suffer as a result of an order permitting introduction of the documents and whether the prejudice can be remedied in some way.” 25. From the above decisions, and at this preliminary stage, where the document has yet to be produced in evidence, it would be premature to draw a conclusion on its admissibility and/or probative value, as argued by the Plaintiff/Respondent. Furthermore, their argument that prejudice will be occasioned, as they have significantly done their case, is defeated by the fact that they will be able to rebut and/or challenge the said evidence at the appropriate time. 26. Consequently, I am inclined to exercise discretion and allow the Application as sought. xvi) The Applicant is granted 7 days to file and serve the Further List of Documents. xvii) Costs of this Application shall be in the cause. Signed, Dated and Delivered Virtually on this 29 th Day Of July 2026. ACEC SUIT NO. E008 OF 2021- RULING 9

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R.E. OUGO JUDGE In the presence of: Miss Wambugu -For the Plaintiff -For the 1st Defendant Mr. Kariuki 2nd Defendant – Absent 3rd Defendant - Absent 4th Defendant - Absent 5th Defendant - Absent 6th Defendant - Absent 7th Defendant - Absent 8th Defendant - Absent 9th Defendant – Absent 10th Defendant - Absent 10th Defendant – Absent 11th Defendant - Absent 12th Defendant - Absent 13th Defendant - Absent 14th Defendant - Absent Adan/ Minah - C/A ACEC SUIT NO. E008 OF 2021- RULING 10

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