Nkoitiko & another v Letoluo

4. The present application was therefore led pursuant to the express leave granted in the said ruling. The Court will consequently not revisit the question whether the Applicant had established sucient cause for the Court to intervene at all. That question was substantially determined by the ruling of 26th March 2026. The issue presently before the Court is whether, and to what extent, the particular orders sought in the present application should issue. B. Pleadings i.The Notice of Motion and Supporting Adavit 5. The Defendant/Applicant, Peter Tinkoi Ole Letoluo, led the Notice of Motion dated 1st April 2026, supported by his adavit sworn on the same date, seeking leave to amend his Statement of Defence and Counterclaim, call additional witnesses and le their witness statements, and recall the Plaintis’ witnesses for further cross-examination. The application is premised on the Court’s ruling of 26th March 2026, by which the Applicant was granted leave to formally seek reopening of his defence case and directions on the Counterclaim. 6. The Applicant contends that his defence case was closed on 9th September 2025 before it was fully prosecuted, as he was the only witness who testied notwithstanding that he had led a list of witnesses, while the Counterclaim was not supported by evidence and had consequently not been determined on its merits. He attributes the failure to call the intended witnesses and fully prosecute the defence and Counterclaim to the mistake, inadvertence and negligence of his former advocate. He states that he has since taken steps to prepare the case and is ready to proceed with the additional witnesses and evidence. 7. The Applicant further seeks leave to amend the Statement of Defence and Counterclaim, asserting that the proposed amendments are intended to clarify and comprehensively set out the material issues in controversy and do not introduce a new cause of action. He maintains that the amendments are necessary for the just and complete determination of the dispute and will not prejudice the Plaintis, who will have an opportunity to respond. 8. The Applicant also seeks leave to recall the Plaintis’ witnesses for purposes of cross-examination and to call additional witnesses whose evidence he considers material to the determination of the suit and Counterclaim. He invokes Order 8 Rules 3, 5 and 6 and Order 18 Rule 10 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Article 50(1) of the Constitution, contending that reopening the case is necessary to aord him a fair opportunity to present his evidence, challenge the Plaintis’ evidence and prosecute his Counterclaim. He states that the application has been brought timeously and in good faith pursuant to the Court’s directions, and that any prejudice to the Plaintis can be addressed through costs. He therefore urges the Court to allow the application in the interests of justice, fairness and equity. ii. Grounds of Opposition 9. The Plaintis/Respondents oppose the application vide grounds of opposition dated 13th May 2026 on the ground that the Court’s ruling of 26th March 2026 only granted the Defendant/Applicant leave to le a formal application for reopening of the defence case and for directions on the Counterclaim. They contend that, instead, the Applicant seeks to amend his Defence and Counterclaim despite pleadings having closed. They further argue that the application is fatally defective for failure to annex the proposed amended Defence and Counterclaim, thereby leaving the Court without the pleadings sought to be introduced for consideration. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 2

page 2 of 9

10. The Plaintis/Respondents also oppose the prayer for recall of their witnesses for further crossexamination, contending that such an order would eectively amount to reopening the Plaintis’ case and was not contemplated by the Court’s ruling of 26th March 2026. They therefore maintain that the application exceeds the scope of the leave previously granted, is misconceived and amounts to an abuse of the Court process. Consequently, they urge the Court to nd the application incompetent and without merit and dismiss it with costs. C. Parties’ Submissions i. Defendant/Applicant Submissions 11. The Defendant/Applicant, in submissions dated 4th June 2026, supports the Notice of Motion dated 1st April 2026 and submits that the application was led pursuant to the Court’s ruling of 26th March 2026, which found that the defence had not been fully prosecuted, only one of four listed defence witnesses had testied, the Counterclaim had not been supported by evidence, and the failure was substantially attributable to the Applicant’s former counsel. The Applicant therefore contends that the present application seeks to give eect to the Court’s earlier intervention and to facilitate determination of the dispute on its merits. 12. On the prayer to reopen the defence case and call additional witnesses, the Applicant relies on the Court’s discretion to prevent injustice arising from mistake, inadvertence or excusable error. Reliance is placed on Shah v Mbogo & Another [1967] EA 116, where the Court stated that judicial discretion should be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, and Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, where the Court observed that a party should not ordinarily be denied a hearing on the merits merely because of a mistake. The Applicant further invokes Article 50(1) of the Constitution, submitting that a fair hearing includes an opportunity to present evidence in support of one’s case. 13. Regarding amendment of the Defence and Counterclaim, the Applicant relies on Order 8 Rules 3, 5 and 6 of the Civil Procedure Rules, submitting that the Court has power to allow amendments at any stage where necessary for determining the real questions in controversy. Reliance is placed on Eastern Bakery v Castelino [1958] EA 461, for the principle that amendments sought before judgment should generally be allowed where they can be made without injustice to the other party, and Central Kenya Limited v Trust Bank Limited & 5 Others [2000] eKLR, for the principle that amendments made in good faith may be allowed where any prejudice occasioned can be compensated by costs. The Applicant maintains that the proposed amendments arise from the same dispute already before the Court, do not introduce a new cause of action, and would aord the Respondents an opportunity to respond. 14. On the prayer to recall the Plaintis’ witnesses, the Applicant relies on Order 18 Rule 10 of the Civil Procedure Rules, which empowers the Court at any stage of a suit to recall a witness who has been examined, and Section 146(4) of the Evidence Act, which permits recall of a witness for further examination-in-chief or cross-examination with leave of the Court. The Applicant submits that the proposed recall is limited to further cross-examination and is intended to facilitate a complete determination of the issues arising upon reopening of the defence case, rather than to delay proceedings. 15. The Applicant further submits that the Respondents have not demonstrated any prejudice that cannot be compensated by costs. It is contended that the Respondents would retain the opportunity to respond to any amended pleadings, witness statements and evidence allowed by the Court, whereas refusal of the application would prevent the Applicant from fully prosecuting his Defence and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 3

page 3 of 9

Counterclaim. On costs, the Applicant relies on Section 27 of the Civil Procedure Act and urges that costs of the application be in the cause, as the application was led pursuant to the Court’s earlier directions. 16. The Applicant consequently urges the Court to allow leave to amend the Defence and Counterclaim, call additional witnesses and le their witness statements, recall the Plaintis’ witnesses for further cross-examination, issue any consequential directions necessary for the fair determination of the dispute, and order that the costs of the application be in the cause. ii. Plaintis/Respondents' Submissions 17. The Plaintis/Respondents, in their submissions dated 2nd July 2026, oppose the Defendant/ Applicant’s Notice of Motion dated 1st April 2026 and submit that although the Court’s ruling of 26th March 2026 granted the Applicant leave to le a formal application for reopening of the defence case, such leave did not amount to a grant of the substantive orders sought. They contend that the Applicant was still required to demonstrate sucient cause for amendment of the Defence and Counterclaim, calling of additional witnesses and recall of the Plaintis’ witnesses. In support, they rely on Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR, for the principle that court orders are binding and must be complied with. 18. On the proposed amendment of the Defence and Counterclaim, the Plaintis submit that the Applicant has failed to annex draft amended pleadings, thereby leaving the Court unable to determine the nature, scope and eect of the proposed amendments or whether they would introduce new issues or cause prejudice. They rely on Central Kenya Limited v Trust Bank Limited & 5 Others [2000] eKLR, where the Court of Appeal stated that amendments should be allowed where necessary to determine the real questions in controversy, provided there is no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is aected, and the amendment can be made without injustice to the other party. The Plaintis contend that the proposed amendments, coming after closure of the defence case, would amount to an attempt to reconstruct or strengthen the Applicant’s case and would occasion undue delay and prejudice. 19. As regards the prayer to recall the Plaintis’ witnesses, the Plaintis acknowledge that Order 18 Rule 10 of the Civil Procedure Rules, 2010 and Section 146(4) of the Evidence Act, Cap. 80 confer discretion upon the Court to recall witnesses for further examination or cross-examination. They submit, however, that the power is discretionary and should only be exercised where sucient cause has been demonstrated. They argue that the Applicant has not identied any ambiguity, contradiction, omission, newly discovered matter or exceptional circumstance warranting recall, and that he had a full opportunity to cross-examine the Plaintis’ witnesses before they were discharged. 20. The Plaintis further submit that the Applicant’s reliance on the alleged negligence and inadvertence of his former advocate does not, in the circumstances, justify reopening the proceedings. They rely on Tana and Athi Rivers Development Authority v Jeremiah Kimigo Mwakio & 3 Others [2015] eKLR, citing the principle in Ketteman & Others v Hansel Properties Ltd [1988] 1 All ER 38, that litigation should be conducted eciently and that, in appropriate circumstances, the consequences of negligent conduct of litigation may properly fall upon the negligent party rather than occasion late alteration of proceedings. They also rely on Susan Wavinya Mutavi v Isaac Njoroge & Another, ELC Case No. 1174 of 2015, for the proposition that a party who had an opportunity to present or challenge evidence during trial should not ordinarily be permitted to reopen proceedings merely to cure deciencies in its case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 4

page 4 of 9

21. Further reliance is placed on Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd, HCCC No. 37 of 2007, where the Court held that the discretion to reopen proceedings must be exercised judiciously and that reopening should not be permitted where its purpose is merely to ll gaps in evidence, embarrass or prejudice the opposing party, or where there has been inordinate and unexplained delay. Applying these principles, the Plaintis contend that the Applicant is eectively seeking a second opportunity to improve his Defence after closure of evidence, rather than seeking clarication of an issue arising during trial. 22. The Plaintis therefore submit that the Applicant has failed to place before the Court sucient material to justify reopening the defence case, amending the Defence and Counterclaim, calling additional witnesses or recalling the Plaintis’ witnesses. They maintain that allowing the application would prejudice them, undermine the nality of litigation and prolong the proceedings. On costs, they rely on Section 27 of the Civil Procedure Act, submitting that costs follow the event, and consequently pray that the Notice of Motion dated 1st April 2026 be dismissed with costs to the Plaintis/Respondents. D. Issues for Determination 23. In the circumstances, the following issues arise for determination: i. Whether the Applicant has established a basis for reopening the Defence case and calling additional witnesses pursuant to the Court’s ruling of 26th March 2026; ii. Whether the Applicant should be granted leave to amend the Statement of Defence and Counterclaim; iii. Whether the Plaintis’ witnesses should be recalled for further crossexamination; iv. What directions are necessary to ensure the just and expeditious determination of the suit and Counterclaim; and v. Who should bear the costs of the application? F. Analysis and Determination i. Reopening of the Defence Case and Calling Additional Witnesses 24. As already stated, this Court, in its ruling of 26th March 2026, expressly found sucient cause to warrant intervention and stayed delivery of judgment to enable the Applicant to make a formal application for reopening of the Defence case and directions on the Counterclaim. 25. The relevant portion of that ruling is important. The Court ordered that the delivery of judgment be stayed and that the Applicant be granted leave to le and serve a formal application for reopening of the Defence case and directions on the Counterclaim. The present application was led pursuant to that order. 26. It would therefore be contrary to the substance and eect of the earlier ruling for the Court now to hold that no sucient basis exists for reopening the Defence case. The earlier nding remains part of the record and binds the Court unless set aside, reviewed or successfully challenged on appeal. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 5

page 5 of 9

27. The Applicant seeks to call the additional witnesses whose evidence was not adduced when the Defence case was closed. The explanation remains that although four witnesses had been listed, only the Applicant testied and the Counterclaim was not supported by evidence. The Court had already considered those circumstances in the earlier ruling and found sucient cause for intervention. 28. The Court is also guided by the overriding objective of the Civil Procedure Act under Sections 1A and 1B, which requires the just, expeditious, proportionate and aordable resolution of civil disputes. The Court must, however, balance that objective with the need for nality of litigation and the avoidance of prejudice to the opposing party. 29. In Shah v Mbogo & Another [1967] EA 116, the Court stated that the discretion of the Court is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. Similarly, in Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, the Court recognized that mistakes occur in litigation and that a litigant should not necessarily suer the penalty of having his case shut out because of such mistake. 30. Further, Article 50(1) of the Constitution guarantees every person the right to have a dispute resolved in a fair and public hearing. That right includes a meaningful opportunity to present evidence in support of a claim or defence. 31. In the circumstances of this case, and particularly having regard to the Court’s earlier ruling, I nd that the Applicant should be permitted to reopen the Defence case for the limited purpose of calling the material witnesses identied in the application and presenting evidence relevant to the existing Defence and Counterclaim. 32. This permission is not, however, an unrestricted licence to introduce an entirely new case. The additional evidence must remain relevant to the matters already pleaded and must be led and served within the timelines directed by the Court. ii. Amendment of the Defence and Counterclaim 33. The Applicant also seeks leave to amend the Defence and Counterclaim. The Respondents oppose the prayer principally on the ground that no draft amended Defence or Counterclaim has been annexed. 34. The law permits amendment of pleadings where necessary for determining the real questions in controversy. Order 8 Rule 5(1) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to order amendment upon such terms as to costs or otherwise as may be just. 35. In Central Kenya Limited v Trust Bank Limited & 5 Others [2000] eKLR, the Court of Appeal stated that amendments should generally be allowed where necessary for determining the real question in controversy or avoiding multiplicity of suits, provided there is no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is aected, and the amendment can be made without injustice to the other side. 36. Likewise, in Eastern Bakery v Castelino [1958] EA 461, the Court recognized that amendments sought before judgment should generally be allowed where they can be made without injustice to the opposing party. 37. However, the Court cannot meaningfully exercise that discretion without seeing the amendments sought. In the present application, the Applicant has merely stated the intended purpose of the amendments but has not placed before the Court the proposed amended Defence or Counterclaim. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 6

page 6 of 9

38. The Court is therefore unable to determine whether the proposed amendments merely clarify existing matters, introduce new causes of action, alter the character of the dispute, or occasion prejudice to the Plaintis. 39. The fact that the Court permitted the Applicant to formally apply for reopening of the Defence case and directions on the Counterclaim did not, in my view, amount to an automatic grant of leave to amend pleadings. The prayer for amendment must independently satisfy the requirements of Order 8 of the Civil Procedure Rules. 40. Consequently, the prayer for leave to amend the Defence and Counterclaim cannot be granted in its present form. The Applicant has not supplied the material necessary for the Court to exercise its discretion. The prayer is therefore declined, without prejudice to the Applicant seeking appropriate leave upon presenting the proposed amended pleadings, if otherwise permissible in law. iii. Recall of the Plaintis’ Witnesses 41. The Applicant further seeks leave to recall the Plaintis’ witnesses for purposes of further crossexamination. He relies on Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act. 42. Order 18 Rule 10 provides for recall of a witness who has already been examined, while Section 146(4) of the Evidence Act recognizes the Court’s power to permit recall for further examination-in-chief or further cross-examination. 43. The existence of that power does not mean that recall follows automatically whenever a party is permitted to reopen its own case. The discretion must be exercised judiciously and with regard to the circumstances of the particular case. 44. In Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & Another [2015] eKLR, the Court observed that reopening should not be permitted merely to ll gaps in evidence or where it would embarrass or prejudice the opposite party. 45. In the present case, the Applicant has not identied any particular aspect of the Plaintis’ evidence that requires clarication as a consequence of the reopening of the Defence case. Neither has he identied any specic matter which could not reasonably have been addressed during the original crossexamination. 46. The fact that the Applicant is being permitted to call additional defence witnesses does not, by itself, justify reopening the Plaintis’ case. The Plaintis’ witnesses have already testied, been crossexamined and discharged. 47. A general order recalling all or several of the Plaintis’ witnesses would unnecessarily reopen concluded portions of the trial and potentially cause prejudice and delay. The Court therefore declines the prayer for general recall of the Plaintis’ witnesses. 48. This does not deprive the Court of its power under Order 18 Rule 10 of the Civil Procedure Rules to recall a particular witness should a specic issue arise during the reopened proceedings which, in the Court’s assessment, requires clarication for the just determination of the dispute. iv. Appropriate Directions 49. The Court must now give eect to the ruling of 26th March 2026 while ensuring that the proceedings remain proportionate and orderly. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 7

page 7 of 9

50. The reopening shall therefore be conned to the Defence and Counterclaim as presently pleaded. The Applicant shall be permitted to call the material witnesses whose evidence was not adduced when the Defence case was closed and to le their witness statements and documents in accordance with the directions of the Court. 51. The Plaintis shall retain their right to cross-examine the additional defence witnesses and to respond to any admissible evidence placed before the Court. 52. The limited reopening ordered herein should not be construed as granting the Applicant a second opportunity to reconstruct his case generally. The purpose is to give practical eect to the Court’s earlier nding that the Defence and Counterclaim had not been fully prosecuted and to ensure that the Counterclaim, in particular, is determined upon evidence rather than without substantive hearing. v. Costs 53. Section 27 of the Civil Procedure Act gives the Court discretion in the award of costs. Although costs ordinarily follow the event, the present application arises directly from the leave granted by this Court in its ruling of 26th March 2026 and has succeeded only in part. 54. In the circumstances, the appropriate order is that the costs of the application shall be in the cause. E. Disposition 55. 56. In the result, the Notice of Motion dated 1st April 2026 is partly allowed on the following terms: a. The Defendant/Applicant is granted leave to reopen the Defence case for the limited purpose of calling the material defence witnesses and adducing evidence in support of the existing Defence and Counterclaim. b. The Defendant/Applicant shall le and serve the witness statements and documents upon which he intends to rely within 14 days from the date of this ruling. c. The Plaintis/Respondents shall have the corresponding opportunity to respond to the additional evidence and to cross-examine the additional defence witnesses. d. The prayer for leave to amend the Statement of Defence and Counterclaim is declined, the Applicant having failed to annex the proposed amended pleadings. e. The prayer for general recall of the Plaintis’ witnesses for further crossexamination is declined. f. The reopening of the Defence case shall be limited to the existing Defence and Counterclaim and shall not be used to introduce a new cause of action or an entirely new case. g. The costs of the application shall be in the cause. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK THIS 21ST DAY OF SEPTEMBER, 2026. HON. H.M. NYABERI https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 8

page 8 of 9

CHIEF MAGISTRATE In the Presence of: Court Assistant: Mr. Danson Solian Plainti’s Advocate: Mr. Jerry Nandi Defendant’s Advocate: Mr. Kipyegon https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/927/eng@2026-09-21 9

page 9 of 9