1.The Plaintiffs moved the court through the Notice of motion dated 13th July 2022 seeking the following orders;a)Spent.b)That the Honourable court be pleased to grant the Plaintiffs/Applicants leave to file further evidence and documents in support of the case.c)That the Honourable court be pleased to give further directions on further hearing of the suit.d)That the costs of and incidental to this application be costs in the cause.
2.The Application is supported by an affidavit sworn by Joseph Gikonyo Chege, the 1st Plaintiff who is also a director of the 2nd Plaintiff. The said affidavit was sworn on 13th July 2022. He deposed that the Plaintiffs had testified on 24th May 2022 and the matter is scheduled for further hearing on 12th October 2022 and that he has come across further relevant evidence that will assist this court reach a just and fair determination of the matter.
3.He further deposed that he seeks leave to adduce additional documents on behalf of the Plaintiffs which documents are listed at paragraph 7 of his supporting affidavit and annexed as annexure ‘JCG – 1’. He went on to state that there will be no prejudice to the Defendants if the said documents are adduced as evidence in this suit and further that the documents are consistent with the evidence already filed and or adduced by the parties and they do not in any way seek to prejudice or steal a match against them.
4.This court pursuant to its directions issued on 20th July 2022, directed the application to be canvassed by way of written submissions. The Applicants were required to file and serve their written submissions by 2nd August 2022 while the Respondents had until 16th August 2022 to file and serve their response and written submissions. As per the court record, the Applicants complied and filed their written submissions dated 2nd August 2022 but the 1st Defendant filed a Replying Affidavit sworn on 26th August 2022 which affidavit was filed on 29th August 2022. The court’s directions issued on 20th July 2022 were quite clear to the parties that any response and submissions that shall be filed out of the stipulated timelines would not be considered as part of the court record. It is worth noting that the Respondents were expected to file their response and written submissions by 16th August 2022. The same was not complied with and the Replying Affidavit sworn by Joseph Karanja on 26th August 2022 on behalf of the 1st Respondent is expunged from the court record in line with this court’s order issued on 20th July 2022.
5.I have carefully considered the application and the affidavit filed in support together with the written submissions filed by the Applicants. The Applicants have invoked Order 18 Rule 10 of the Civil Procedure Rules and Section 1 A, 1 B & 3A, 63(e) of the Civil Procedure Act and Section 146 of the Evidence Act. They urge the court to grant them leave to file further evidence and documents in support of the case. The issue for the court to determine in the instant matter is whether the Applicants have provided a reasonable and justifiable basis for the court to exercise its discretion to allow them adduce further evidence. The discretion of the court cannot be exercised whimsically but ought only to be exercised judiciously. A basis for the exercise of discretion has to be laid by the party inviting the court to exercise its discretion. In the present case the question for the court to answer is whether the Applicants have satisfied the threshold by providing a rational basis for the court to allow the calling of further evidence.
6.A perusal of the court record shows that on 2nd December 2021 the Applicant’s requested and were subsequently granted leave to file further documents in form of a survey report and supplementary witness statement. The same were filed and the matter proceeded for hearing on 24th May 2022 wherein three witnesses testified on behalf of the Plaintiffs and their case was closed. After the close of the Plaintiffs case, the defence case commenced thereafter and the 1st Defendant’s witness testified and the matter was subsequently adjourned for further defence hearing on 12th October 2022.
7.In the Plaintiffs/Applicants application dated 13th July 2022, the Applicants have not sought for any orders seeking the re-opening of their case before seeking leave to adduce additional evidence. The Plaintiffs have equally not stated anywhere in the supporting affidavits that they had closed their case. I find this mischievous and only meant to conceal the current status of the matter. Parties are ordinary bound by their pleadings and the court cannot grant what has not been pleaded nor prayed for.
8.The Plaintiffs closed their case on 24th May 2022. Prior to the said date, they had been granted leave to file any additional document they intended to use during trial, they additionally filed a surveyors’ report and supplementary witness statement. The court cannot allow the production of additional evidence by a party who had closed his case and has equally not sought for re-opening of the same. The matter is now at the defence hearing.
9.In the premises and for all the above reasons, I am not persuaded that the application is merited. I have no option but to dismiss the same with no orders as to costs. The matter shall proceed for further defence hearing on 12th October 2022 as earlier scheduled.