a.Whether the Application is properly opposed
12.The Defendants/Applicants filed the instant application and the Court gave directions that it be served upon the Plaintiffs/Respondents for purposes of the filing and serving a Replying Affidavit and thereafter written submissions by both parties. When the Application came for inter partes hearing on 20/04/2023 only learned counsel for Plaintiffs/Respondents attended the virtual Court session and indicated that they were yet to file submissions and asked for more time. Both parties were given 14 days to do so. On 10/05/2023 when it came up again for the second time for inter partes hearing the same learned counsel attended and prayed for yet more time. The Court gave the date of 7/06/2023 on which date both learned counsels attended and confirmed they had filed submissions on the Application. The Court gave a date for Ruling.
13.However, upon the court embarking on the determination of the matter, it came across an unfiled document purporting to be a Replying Affidavit. In considering the ‘Replying Affidavit’ the Court noticed that the Plaintiffs/Respondents had not filed it although in their submissions they referred to one sworn on 06/03/2023.
14.The legal provision on how applications are conducted in this and courts below Order 51 Rule 14 of the Civil Procedure Rules, 2010. It provides that;
15.Thus, a party wishing to oppose an application may do so in one or more of three ways, being, by filing grounds of opposition, a preliminary objection or a Replying Affidavit. It cannot be and has never been by way of submissions solely. Guided by the above provision of the law in the instant case I find that the Plaintiffs/Respondents did not file any of the contemplated documents as provided under Rule 14. Instead chose to state in their filed written submissions that they filed a Replying Affidavit which was not the correct position, and that did not amount to an opposition to the Application.
16.Then, what then happens to the Written Submissions filed by the Plaintiffs/Respondents? In the Supreme Court case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others  eKLR when the court was faced with a similar scenario the court stated as follows;
17.I am guided by the above authority and also determine that the written submissions filed by the Plaintiffs/Respondents absent of a Replying Affidavit amount to nothing in the determination of the instant Application. That, in my humble view therefore, means that the averments in the Application filed by the Defendants/Applicants are deemed as uncontroverted and unchallenged.
18.Be as it may and having held as such, the Application by the Defendants/Applicants should not be deemed as having been allowed merely on that ground. This Court has a duty to consider the Application and proceed to determine it on its merits. Where meaningless or hopeless unmeritorious applications, pleadings and such like documents or requests find their way to Court it does not leave the Court powerless in meting out justice. The Court does not act mechanically and is not a mere conduit or conveyance of every and sundry request or claim. It behooves the Court to be satisfied that prima facie, with no objection, the Application or prayer before it is meritorious and the prayers sought may be granted. Hence, I will proceed to consider the facts before me as against the jurisprudence on adduction of evidence in Court and re-opening of a suit (closed), for purposes of introducing new evidence.
b.Whether the Defendants should be allowed to re-open the Plaintiffs case after they have closed its case by introducing new evidence.
19.The Applicants did not pray for the re-opening of the Plaintiffs’ closed case upon their application being granted. The effect of granting the Application may involve the re-opening of the case that has been closed. It is noteworthy that the instant Application was filed after the close of the Plaintiffs’ case but before that of the Defendants was heard. In determining the instant Application, this Court needs to find out if the evidence sought to be introduced, being documentary in nature, was not vailed to the Court at time of filing the Defence. This is because in terms of Order 7 Rule 5 of the Civil Procedure Rules, 2010, it is obligatory that a Defendant files his/her Defence together with a List of Documents and copies thereof with it. The Rule, just like Order 3 Rule 2, is silent on filing any document after the close of pleadings. Then, in a situation where a party does not file documents together with the Defence or Counterclaim, they have a higher bar to scale than on a balance of probabilities why they should be given leave of the Court to file the documents (later). This is even more difficult when the suit has gone through compliance under Order 11 of the Civil Procedure Rules and been set down for hearing.
20.This Court has had occasion to examine such a scenario before and pronounced itself in a detailed manner as hereinafter. Thus, in Mansukhalal Jesang Maru v Frank Wafula  eKLR this Court stated that:
21.Also, in Johana Kipkemei Too v Hellen Tum  eKLR Justice Munyao S held that:
22.Similarly, in the case of Raila Odinga & 5 Others v IEBC and 3 Others (2013) eKLR the Supreme Court while dealing with an issue of admission of documents outside the stipulated timeliness stated that:
23.One thing remains clear, that in order for the Court to grant leave to a party to file further documents, after pleadings have been filed, they must clearly demonstrate that failure to avail the said evidence was not deliberate.
24.Regarding the aspect of re-opening a Plaintiff’s or Defence case, I am minded of the fact that both the Civil Procedure Rules and the Evidence Act do not have an express framework on how the jurisdiction is to be exercised. Needless to state, the decision whether or not to allow re-open an ongoing case is purely left to the realm of judicial discretion, which discretion must be exercised judiciously and in the interest of justice.
25.The crucial question to be resolved by the Court when faced with an application to re-open is whether the adverse party would suffer prejudice or not. In my view, the Court has to take into account the various principles that have been developed which govern applications of such a nature.
26.In Susan Wavinya Mutavi v Isaac Njoroge & another  eKLR, the Court, in disallowing a similar application held that:
27.In associating myself with the above quoted judicial authority I am of the view that a trial should not be used as a fishing ground for new evidence to fill in gaps that an adverse party may have created, for this would negate the very essence of pre-trial disclosure. It must be clear that only new evidence could not be reasonably available to the Applicant even after exercise of due diligence is what the Court may consider when faced with such an application. The position should not be for one party, after the other has tabled his evidence, to start looking for evidence specifically to counter what the other party adduced. That would be encouraging parties to go on a fishing expedition and a hearing will never end. This Court finds that this is what the Defendants seek in their current Application.
28.Moreover, the Applicants did not adduce any evidence on when and whether the report was concluded by the DCI in order for this Court to ascertain that it could not have been obtained with reasonable diligence either before the close of pleadings and or the hearing of the Plaintiffs case. Furthermore, the Applicants did not produce evidence before this Court that the DCI had refused to avail the said report and that the said office was unwilling to produce the Report. Again, it is strange that the Report was conveniently sought to be availed subsequent to the close of the Plaintiffs case. It is this Court’s view that allowing the said additional evidence would place this Court in a partisan position, make the Court aid the Applicants in their fishing expedition, and greatly prejudice and cause great injustice to the Respondents who have since closed their case.
29.Furthermore, the additional evidence that the Applicants seek to adduce is a report prepared by the DCI in respect of Criminal Case No. 170 of 2020 over the land dispute between the parties herein which is the subject matter in the present case. In essence, the Defendants/Applicants seem to be seeking for an independent body carrying out its mandate within the law for another purpose other than this suit to surrender information generated for an independent process. It is worth noting that criminal proceedings are independent of civil ones and the standards of proof in each are quite distinct of the other.
30.The Court is of the humble view that the DCI not being a party to this suit cannot be compelled to produce evidence on the part of any of the parties unless and except if the said office was called as a witness herein. As the application stands now, it is a merely fishing expedition by the Applicants. I am guided by the decision in the case of Peter Kirika Githaiga & Another Vs Betty Rashid (2016) eKLR, regarding an appeal from a decision of refusal by the superior court to order the DCI to produce a report by the Document Examiner, the Court of Appeal aptly put it as follows;
31.Moreover, given that the Applicants sought to introduce new evidence after the close of the Plaintiffs’ case but did not pray for the Plaintiff’s case to be reopened and that they be given chance to confront the evidence before closure of their case, the Application was tailored towards stealing a match against the Plaintiffs hence greatly prejudice them. To this extent this Court concludes that the need to summon the DCI to produce the said is unmerited, and allowing the application would result in granting an opportunity to the Applicants to answer the evidence that has been adduced by the Respondents. For these reasons I find that the application must fail.