Valere Business Sytems v Cementers Ltd (Claim E18906 of 2024) [2025] SCC 36 (KLR)

2. The instant Application was premised on the grounds on the face of it, which were reiterated in the Supporting Affidavit sworn by Stephen Thuku on 12th November 2025. 3. The gist of the instant Application was that after filing submissions, the Claimant/Applicant inadvertently discovered omitted and documentary which affects evidence the core that was issues for determination. Stephen Thuku also averred that the documents sought to be filed provide clarity on the true extent of the Respondent’s indebtedness and directly respond to the issues raised in the Respondent’s Amended Response to the Statement of Claim dated 03 rd October 2025. 4. Further, he added that the said documents were discovered during the Claimant/Applicant’s internal audit and reconciliation process after the judgment date had been set, and that no prejudice will be occasioned to the Respondent since they will have an opportunity to respond to the documents before final judgment. 5. The Claimant/Applicant urged this court to grant the orders sought in the interest of justice and in furtherance of the right to a fair hearing under Article 50 (1) of the Constitution. 6. The Respondent opposed the instant Application through a Replying Affidavit sworn by Nikhil Vishram on 27th November 2025. 7. Vishram deposed that the motion to arrest delivery of judgments is unknown in civil procedure but a creature of the Criminal Procedure Code. He added that the Claimant/Applicant was seeking to file additional evidence a year after filing the claim, and that the Claimant was only seeking to cure weaknesses in their claim. 8. He also deposed that the mere fact that the parties herein had elected to proceed with documents did not give room for reopening the evidentiary record. Further, he averred that the purported new evidence is neither new nor newly discovered evidence since the same

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was always within their custody, hence cannot be the basis of seeking leave to file additional documents…. 9. In the circumstances, the Respondent urged this court to dismiss the instant Application with costs. 10. The instant Application was canvassed by way of written submissions. The parties filed their respective written submissions. The said submissions were largely a rendition of the position taken by the parties herein regarding the instant Application in their pleadings. Therefore, it will not serve any purpose for this court to reproduce the contents of the said written submissions in this ruling. ANALYSIS AND DETERMINATION 11. This court has duly considered the pleadings as well as the written submissions on record. This court takes the considered view that the issues for determination are: a) Whether this court can make an order for the arrest of delivery of judgment b) Whether the Claimant/Applicant should be granted leave to reopen their case to file further documents Whether this court can make orders for the arrest of the delivery of judgment 12. The Respondent deposed in his Supporting Affidavit and written submissions that an application to arrest the delivery of a judgment is unknown and lacks any legal basis in civil litigation. He was of the view that such applications are only a creation of the Criminal Procedure Code. 13. This court agrees with the Respondent to the extent that motions to arrest a judgment are expressly provided for in the Criminal

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Procedure Code as set out in section 324 of the said Code in the following terms: “324. Motion in arrest of Judgment (1)The accused person may, at any time before sentence, whether on his plea of guilty or otherwise, move in arrest of judgment on the ground that the information does not, after any amendment which the court has made and had power to make, state an offence which the court has power to try...” 14. There is no doubt that motions to arrest a judgment are not expressly provided for in the Civil Procedure Act and the rules made thereunder, as well as the Small Claims Court Act and the rules thereunder. 15. This begs the question of whether an application to arrest the delivery of a judgment can be made in a civil matter. This question was answered by the Court of Appeal in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR, where the Court affirmed that a trial court has inherent jurisdiction under the provision of Section 3A of the Civil Procedure Act, Cap. 21, to arrest delivery of Judgment where justice so demands. 16. Section 36(4) of the Small Claims Court Act, on the other hand, gives the court the power to make any order or give any direction it thinks necessary for the achievement of the purposes of the Act. 17. The foregoing shows that this court, in exercise of its inherent jurisdiction under Section 3A of the Civil Procedure Act, and in exercise of its powers under Section 36 (4) of the Small Claims Court Act, can make such orders as it deems fit in the interest of justice. This court

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takes the view that such orders include orders to arrest the delivery of a judgment for ends of justice to meet. 18. It is against this backdrop that this court finds and holds that it has the jurisdiction to make an order for the arrest of the delivery of judgment in this matter. Whether the Claimant/Applicant should be granted leave to reopen their case to file further documents 19. The Claimant/Applicant seeks the reopening of their case for them to file additional documents, which, in their view, will ensure a just determination of this matter. 20. It is given that this court has the discretion, when moved by a party, to order that a party’s case be reopened for a party to adduce additional evidence. However, that discretion must be exercised judiciously. Courts have, over time, the issues to be considered by a court in exercising its discretion to order the reopening of a party's case. 21. The said issues are: The stage at which the proceedings had reached, whether the new evidence sought to be adduced could not be obtained earlier despite the exercise of due diligence by a party, the prejudice likely to be occasioned to the other party, and the peculiar circumstances of a case (See Johana Kipkemei Too vs Hellen Tum (2014) eKLR, Momanyi & another v Ongwae & 3 others (Environment & [2024] KEELC 6932 (KLR), Land Joseph Case Muya E007 of 2023) Njuru v Stephen Njoroge Kunda & 4 others (Environment & Land Case 156 of 2012) [2019] KEELC 4246 (KLR)). 22. On the stage at which the proceedings had reached, it is not in doubt that the instant Application was made after this matter had been reserved for judgment. The authorities cited above show that courts

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only reopen cases too late in the day if there are peculiar circumstances that demand so. That begs the question of whether there exist exceptional circumstances to warrant the reopening of the Claimant/Applicant’s case at this stage. 23. The Claimant/Applicant deposed that the additional evidence they seek to adduce at this stage only came to their knowledge during the Claimant’s internal audit and reconciliation process conducted after the judgment date had been set. This leads to the question of whether the additional evidence could not have been obtained by the Claimant earlier on, despite the exercise of diligence on their part. 24. The documents sought to be produced by their Claimant were in their custody from the time of filing this claim. Therefore, the Claimant’s claim that the additional evidence they seek to produce is new lacks any basis. 25. What is clearly evident is that the additional documents sought to be filed by the Claimant/Applicant only seek to fill gaps in their case, which gaps became known to them after the Respondent had filed their amended Response to the Statement of Claim and written submissions. 26. Where a party seeks to respond to issues in an amended Response to the Statement of Claim, that party is required to file a response to the amended Response to the Statement of Claim as provided in Rule 17 (5) of the Small Claims Court Rules. The said Rule provides as follows: (5) Any party wishing to respond to an amendment under this rule shall file and serve his or her response on all the parties named in the proceeding in the manner prescribed under rule 35 within seven days of being served with the amended document, or within such period as the Court may direct.

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27. Rule 17(5) reproduced above contemplates the filing of a pleading in response to any amendment not documents. This is for good measure since the parties' cases are supposed to be set out in the respective parties' pleadings. Even in instances where parties elect to proceed under section 30 of the Act, documents cannot supplant pleadings. Any evidence in the documents at variance with the averments in pleadings cannot be considered by the court in determining a matter. 28. The foregoing must have informed the Claimant/Applicant counsel’s prayer on 25th September 2025 for leave to file a response to the Respondent’s amended Response to the Statement of Claim. However, despite this court granting the Claimant’s counsel leave to file the response/reply, the Claimant’s counsel did not file the contemplated response/reply to the amended Response to the Statement of Claim. 29. Given the above, the Claimant/Applicant cannot purport to respond to the contents of the Respondent’s amended Response to the Statement of Claim through additional documents. 30. Be that as it may, it is not lost to this court that Rule 18 (4) of the Rules permits a party to file a supplementary list of documents. However, the said rule is to the effect that the supplementary list of evidential documents, including additional documents not previously disclosed or served, must be filed and served, in any event, not later than three (3) days before the date fixed for hearing of the claim. 31. The analysis above shows that the Claimant/Applicant seeks to have a second bite of the cherry too late in the day through blatant disregard of the rules governing the conduct of proceedings in this court. 32. The Claimant/Applicant having slept on his right to file a response/reply to the amended Response to the Statement of Claim,

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and the right to file supplementary/additional documents, those rights must slip away from them. 33. Holding otherwise will encourage parties to engage in piecemeal litigation of their cases before this court. This court will also be running the risk of permitting a party to wait and see the strength of the other party’s case then try and fill in the gaps by applying to adduce additional evidence, when the other party has already prepared, defended, and closed their case based on what the other party affirmed would be the evidence that they would produce. This court cannot countenance such a practice. 34. On the prejudice to be occasioned to the Respondent, if the orders sought are granted, the Claimant/Applicant submitted that no prejudice will be occasioned to the Respondent since the Respondent will have the opportunity to respond to the documents before final judgment. 35. This court takes the view that granting the orders sought too late in the day will prejudice the Respondent since it will militate against their right to expeditious disposal of the claim facing them. It will also require the Respondent to issue fresh instructions to their counsel on how to respond to the additional evidence sought to be produced by the Claimant/Applicant, thereby defeating the Act’s spirit of costeffective determination of claims. DETERMINATION 36. In the circumstances, the Claimant/Applicant’s Notice of Motion dated 12th November 2025 is found to be devoid of merit and is dismissed with costs of Kshs. 5,000/= to the Respondent. 37. It is so ordered. READ, SIGNED and DELIVERED in open court at Bungoma this 10 th day of December 2025

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T. O. OMONO ADJUDICATOR In the presence of: Mr. Kipkoech for the Claimant Ms. Mulyingi for the Respondent C/A: Mr. Rioba

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