Analysis & DeterminationThe issues that arise for determination are as follows:
9.The substantive law on res judicata is found in section 7 of the Civil Procedure Act cap 21 which provides that:
12.The defendant asserts that the present application is res judicata. He deponed that on February 28, 2022, the plaintiff made an oral application seeking leave to call additional witnesses which was denied and that the plaintiff equally sought to adduce evidence during pre-trial.
13.The present application seeks to re-open the plaintiff’s case and calling of additional witnesses; set aside proceedings of February 28, 2022 and have DW1 & 2 recalled for cross-examination. The pre-trial directions referred to by counsel is a matter of procedure and as such cannot be said to fall within the ambit of res judicata.
14.With respect to the contention that the matter is res judicata on account of the court’s determination of February 28, 2022, the record shows that the hearing proceeded on February 28, 2022 where PW2 testified after which the plaintiff indicated that she had closed her case. DW1 & 2 thereafter testified. The court gave directions that further hearing be conducted on March 24, 2022. The court issued witness summons to the document examiner, Eli John Murage.
15.On September 21, 2021, counsel for the plaintiff sought for an adjournment on the grounds that witness summons should issue to an officer from Nairobi City County to attend court and testify. The court declined to grant the adjournment and directed the matters to proceed with the hearing on that day.
16.The oral application by the plaintiff was specific in that it sought for an adjournment and for the issuance of witness summons for an officer of the Nairobi City County to attend court. The issue before the court at that juncture was not the re-opening of the case, as the matter had not even began. That being the case, the issue being raised by the plaintiff in the present application is not res judicata.
17.Section 146 (4) of the Evidence Act grants the court powers to recall a witness. It provides as follows:
18.Similarly, order 18 rule 10 of the Civil Procedure Rules grants the court powers to recall any witness who has been examined. It provides thus:
19.The above provisions do not specifically address the issue of re-opening of cases with a view of calling additional witnesses and as such, the same is a discretionary power to be exercised by the court pursuant to the provisions of section 3A of the Civil Procedure Act.
20.It is common ground that where a court is called upon to exercise discretion, the same must be exercised judiciously and in the interest of justice. This was aptly expressed by the Court of Appeal in Patriotic Guards Ltd v James Kipchirchir Sambu, Nairobi CA No 20 of 2016,  eKLR as follows:-
21.The principles that guide the court in exercising its discretion while considering whether to re-open a case and receive new evidence were aptly and persuasively expressed by the court in Susan Wavinya Mutavi v Isaac Njoroge & another  eKLR, which stated as follows;
23.The court will be so guided. By way of a brief background, the plaintiff instituted this suit on June 21, 2017 seeking inter alia for permanent injunctive orders against the defendants and a declaration that their encroachment onto the suit property is illegal and unlawful.
24.The plaintiff claims ownership of the suit property by virtue of having allegedly bought the same from the 1st defendant. Together with the Plaint, she filed a list of documents and a list of witnesses. The only witness who recorded a statement in the said list is Margaret Wakio.
25.The defendants vide their defence assert that the 1st defendant never sold the suit property to the plaintiff but sold it to the 2nd defendant who is now the legal owner and that the documents produced by the plaintiff allegedly in respect of the sale are forgeries.
26.The record indicates that the matter came up for a pre-trial conference before the Deputy Registrar on May 7, 2018, on which date there was no appearance by the parties. On October 25, 2018, counsel for the plaintiff stated that he had not complied with the provisions of the Civil Procedure Rules on the filing of witness statements and documents. He sought for more time. The court granted the plaintiff 21 days within which to file her statements and documents.
27.On May 22, 2019, counsel for the plaintiff sought for an adjournment on the grounds that he needed to adduce more documents in court. The said application was allowed. On September 21, 2021, counsel for the plaintiff sought for an adjournment and sought for the issuance of witness summons for a witness from the Nairobi City County. The said application was declined and the matter proceeded for hearing with PW1, the plaintiff, giving her testimony.
28.On February 28, 2022, the matter came up for further hearing. Whereas the plaintiff’s counsel was absent, the plaintiff indicated that she was ready to proceed. The hearing proceeded with DW1 & DW2 giving their testimony.
29.The plaintiff is now asking this court to re-open the case and allow her to adduce additional evidence through her witnesses and to recall the defendants for cross-examination by her counsel. She asserts that her previous counsel failed to file all the relevant witness statements and further abandoned her during trial forcing her to conduct the hearing with her limited legal knowledge.
30.The court has considered the additional witnesses and evidence sought to be adduced. It is the witness statement of John Wainaina Ndungu, Margaret Wakio and David Mwaniki Mathaiya. Their evidence is essentially that they were present when the sale agreement with respect to the suit property was signed as between the plaintiff and the 1st defendant.
31.Indeed, their names appear as witnesses to the sale agreement adduced by the plaintiff. Further, David Mwaniki and Margaret Wakio appear as witnesses in the list of witnesses filed with the plaint on the June 21, 2017. The plaintiff’s case has always been that the sale agreement that she entered into with the 1st defendant is valid. According to the plaintiff, she is not seeking to adduce any new evidence
32.While conceding that the witnesses sought to be produced now have always been within the plaintiff’s knowledge, it is alleged that the failure to adduce the witness statements was due to inaction by counsel. Indeed, in view of the fact that two of the witnesses were indicated in the plaintiffs list of witnesses, the court opines that it is plausible that indeed the failure to adduce the statements was not deliberate on the part of the plaintiff, but was occasioned by a mistake of counsel.
33.The above notwithstanding, on February 28, 2022, the plaintiff opted to proceed with her case despite her counsel’s absence. After the testimony by PW2, the plaintiff stated, “I do not have any other witnesses” and the defence proceeded with its case. The plaintiff never raised the issue of any additional witnesses which is questionable in light of her assertion that she has all along intended to call the aforesaid witnesses and that the failure to do so was occasioned by counsel.
34.Indeed, the present application does not address why the proposed witnesses did not file their statements before the trial commenced. It appears that whereas two of the witnesses were in the initial list, the plaintiff had not settled on calling them up until the defendants testified. This is tantamount to piecemeal litigation which goes contrary to the guarantee of a fair hearing as expressed by article 50 of the Constitution. The application to re-open the plaintiff’s case is rejected.
35.The applicant is seeking to set aside the proceedings of February 28, 2022 and have DW1 & DW2 recalled for cross-examination. It is her contention that as a lay person, her cross-examination was ineffective. Having considered the record of the proceedings of February 28, 2022, it is noted that the plaintiff, despite her counsel’s absence, informed the court that she was ready to proceed with the hearing, which she did.
36.At no point during the proceedings did the plaintiff inform the court that she was incapable of conducting the hearing. A party who takes it upon herself to act in person assumes responsibility for the conduct of her case and cannot later seek refuge in the fact that they are lay people with no legal knowledge. To allow such a plea would create a dangerous precedent where litigants, having undertaken to represent themselves will later seek to have proceedings undone and give themselves a second bite at the cherry.
37.In the circumstances, the court is not convinced that it would be a proper exercise of its discretion to set aside the proceedings of February 28, 2022 and recall the defence witnesses for re cross-examination. This plea is rejected.
38.The upshot of the foregoing is that the application dated March 23, 2022 fails. The same is dismissed with costs.