Kelpar Investment Limited v Occidental Insurance Company Limited

1. By a Notice of Motion dated 8th May 2026, the 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th and 12th Interested Parties/Applicants, through M/s Ben K. Gichana & Company Advocates, moved the Court under Articles 50 and 159(2) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Order 50 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. 2. The Applicants seek orders to defer the delivery of the judgment scheduled for 28th May 2026 pending the hearing and determination of the application; reopen the cases of the 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th and 13th Interested Parties; grant them leave to file and serve witness statements and documentary evidence out of time; and admit into evidence the Certificate of Insurance, Insurance Policy, Copy of Records, Police Abstract and the statutory notices issued under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, together with such further documentary evidence as may be necessary. They also pray that the costs of the application be in the cause. 3. The application is founded on the affidavit of Mary Kerubo Nyamongo sworn on 08th May 2026 on her own behalf and on behalf of the other Applicants pursuant to their written authority. She depones that the Applicants are decree holders

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in the primary suits whose ability to realise the fruits of their judgments depends on the outcome of this declaratory suit. She further avers that the documentary evidence sought to be introduced was unavailable during the hearing because it was in the possession of the Plaintiff and the Defendant, but has since been obtained, thereby necessitating the reopening of the Applicants' cases before judgment is delivered. 4. The application is opposed by the Defendant through the Grounds of Opposition dated 04th June 2026 filed by M/s Boniface Masinde & Company Advocates. The Defendant contends that the application is incompetent, misconceived and an abuse of the court process; that the Interested Parties cannot prosecute independent causes of action in proceedings commenced by plaint; that they participated in the trial without filing pleadings or evidence; that they have already instituted separate declaratory suits in which they may rely on the proposed evidence; and that no sufficient basis has been established to warrant the reopening of the proceedings. 5. The Court has considered the Notice of Motion dated 08th May 2026, the affidavit of Mary Kerubo Nyamongo sworn on even date, the Grounds of Opposition dated 04th June 2026, the Applicants’written submissions dated 18th June 2026 filed through M/s Ben K. Gichana & Company Advocates, the Plaint

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dated 22nd April 2025, the Statement of Defence dated 19 th September 2025 and the authorities cited and the following issues arise for determination: 1) Whether the Applicants have established a sufficient basis to warrant the reopening of their respective cases for the purpose of adducing additional evidence. 2) If the answer to the first issue is in the affirmative, whether the Applicants should be granted leave to file and rely on the proposed witness statements and documentary evidence out of time, and whether the delivery of the judgment scheduled for 28th May 2026 should consequently be deferred pending the hearing and determination of the application. 3) Who should bear the costs of the application. 6. The first issue concerns whether the Applicants, in their capacity as Interested Parties in proceedings commenced by way of plaint, are entitled to seek orders reopening their respective cases, granting leave to file witness statements and documentary evidence out of time, and permitting them to adduce additional evidence. The resolution of that issue requires the Court to examine the nature and extent of the procedural rights of an Interested Party in civil proceedings

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and, if necessary, the principles governing the reopening of proceedings for the admission of further evidence. 7. Learned counsel for the Applicants submitted that the Applicants are decree holders in the primary suits whose judgments the Plaintiff seeks to enforce against the Defendant pursuant to section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. Counsel argued that the documents sought to be introduced are material to the just determination of the dispute as they bear directly on whether the Defendant issued a policy of insurance in respect of motor vehicle registration number KDH 119H. It was further submitted that the documents were not previously available to the Applicants, having been in the possession of the Plaintiff and the Defendant, and that their admission would enable the Court to determine the real issues in controversy without occasioning prejudice to the Defendant. 8. In support of the application, counsel relied on Richard Toroitich v Mike K Lelmet & 3 others [2018] KEELC 3870 (KLR) where the Court allowed the filing of additional documents and witness statements out of time, holding that the overriding consideration is whether the admission of the evidence will serve the ends of substantive justice and whether any prejudice to the opposing party can be addressed by granting it an opportunity to respond to the

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new evidence. Counsel submitted that the proposed certificate of insurance and related documents meet that threshold because they only became available after the close of the hearing and the Defendant would have an opportunity to challenge them. 9. The Interested Parties further relied on Susan Wavinya Mutavi v Isaac [2020] KEELC 8 (KLR), Njoroge where the & Court another held that proceedings may only be reopened where the proposed evidence could not, with reasonable diligence, have been obtained earlier, is likely to influence the outcome of the case, and is not intended merely to fill gaps in the evidence. 10. The Defendant opposed the application on the ground that the Applicants, although joined as Interested Parties, never filed pleadings, witness statements or documentary evidence capable of constituting independent cases. Counsel submitted that the proceedings were instituted by the Plaint dated 22nd April 2025 and that the participation of the Interested Parties remained confined to the interests for which they were joined. It was further argued that the Applicants have already instituted separate declaratory proceedings in which they are at liberty to rely on the documents they now seek to introduce and that the present application is merely an attempt to fill evidentiary gaps after

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both the Plaintiff and the Defendant had closed their respective cases. 11. Counsel further relied on Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR), where the Supreme Court held that an Interested Party may not introduce new issues or expand the scope of the dispute beyond the matters placed before the Court by the principal parties. Counsel submitted that the present application seeks to do precisely that. 12. Counsel Osama further v relied on Winfred Abdulrahman Kendi Opondo & another [2021] KEHC 1966 (KLR), where the the Court reaffirmed where the Court affirmed that the burden of proving a claim rests on the party asserting it, and submitted that the Applicants cannot reopen the proceedings to assume that burden on behalf of the Plaintiff. 13. Lastly, counsel [2025] KEELC 868 (KLR) cited where Kebande the Court v held Arasa that proceedings should not be reopened to fill evidentiary gaps after the close of the hearing, and submitted that the present application is intended to remedy omissions in the Plaintiff's case and should therefore be dismissed.

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14. Having considered the authorities cited by the parties, I am satisfied that they address two distinct issues. Those relied upon by the Defendant concern the legal status and scope of participation of an Interested Party, while those cited by the Applicants relate to the reopening of proceedings and the admission of additional evidence. The threshold issue, therefore, is whether the Applicants, as Interested Parties, are procedurally entitled to seek the reopening of their cases. Only if that question is answered in the affirmative would it become necessary to consider whether the principles governing the admission of additional evidence have been satisfied. 15. It is apparent from the record that the Applicants were joined to these proceedings as Interested Parties. Equally, it is common ground that the suit was commenced by the Plaint dated 22nd April 2025 filed by the Plaintiff through M/s Obuli Namenya & Company Advocates, to which the Defendant responded by filing the Statement of Defence dated 19th September 2025 through M/s Boniface Masinde & Company Advocates. Those pleadings define the issues for determination and identify the respective burdens borne by the principal parties. 16. The Applicants seek leave to reopen their respective cases in order to place before the Court additional

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documentary evidence, namely the Certificate of Insurance, Insurance Policy, Copy of Records, Police Abstract and the statutory notices issued under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, together with such further documentary evidence as may be necessary. They contend that those documents are material to the determination of the dispute between the Plaintiff and the Defendant but were not previously available to them, having been in the possession of the Plaintiff and the Defendant, and only became available after the close of the hearing. They therefore urge the Court to admit the proposed evidence so that the real issues in controversy may be determined on their merits. dispute may be determined on the basis of all the material evidence. 17. From the foregoing, I readily accept that the Applicants have a legitimate and identifiable interest in the outcome of these proceedings, as any determination made by this Court may ultimately affect their ability to realise the fruits of the judgments obtained in the primary suits. 18. That interest, however, does not elevate them to the position of principal litigants. By virtue of the Plaint, the burden of proving the existence of a valid contract of insurance in respect of motor vehicle registration number KDH 119H, and consequently the Defendant's liability under

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section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, rests upon the Plaintiff. Those allegations are specifically traversed in the Statement of Defence. 19. To permit the Applicants to reopen the proceedings for the purpose of producing the proposed insurance documents would, in effect, allow them to adduce evidence in support of the Plaintiff's pleaded case and discharge an evidentiary burden that rests upon the Plaintiff. Such a course would impermissibly transform their role from protecting the interest for which they were joined into prosecuting the Plaintiff's case. 20. I therefore answer the first issue in the negative. The Applicants, as Interested Parties, are not entitled to seek the reopening of these proceedings to adduce evidence in support of the Plaintiff's case. That finding disposes of the application. 21. In view of that finding, the second issue does not arise for determination, and it is unnecessary to consider whether the proposed evidence satisfies the principles governing the reopening of proceedings and the admission of additional evidence.

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22. Accordingly, the Notice of Motion dated 08 th May 2026 is devoid of merit and is hereby dismissed with costs to the Defendant. DELIVERED AT NYAMIRA THIS July 2026 23rd DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant For Plaintiff - Hilda - Mr. Obuli for Obuli Namenya & Co. Advocates For Defendant - Mr. Masinde for Boniface Masinde & Co. Advocates For 6th Interested Party- Mr. Oremo for Oremo Jared & Co. Advocates For 3rd to 5th, 7th to 12 Interested Parties - Mr. Gichana for Ben K. Gichana & Co. Advocates

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