8.There are two dependent issues for determination before this court. First, whether the application has been brought after inordinate delay and second, whether the Plaintiff should be allowed to reopen its case to introduce new evidence.
9.The 1st and 5th Defendants submitted that this case was filed in the year 2003, the Plaintiff’s witness testified and closed its case on May 7, 2018. That the present application was filed in January 2019 hence guilty of inordinate delay and should not be granted. There is no doubt that this matter is old and the pre-trial ought to have been closed. I have perused the record and note that after the Plaintiff closed their case, the Defendants asked for adjournment to prepare to present their case. When the matter came up in Court on January 28, 2019 and after which date the application was filed, the advocates on record informed the Judge that parties were negotiating.
10.For purposes of computing time for this application, I take the date from when the matter was last in court on May 7, 2018. The Plaintiff’s witness began his testimony on April 22, 2017 and concluded on May 7, 2018. The time difference between May 2018 and January 2019 is approximately Six (6) months which in my view is delay but does not amount to inordinate. It is well settled in law that the question of inordinate delay is to be determined on a case by case basis as held by the Supreme Court in the case of Nicholas Kiptoo arap Korir Salat v IEBC and 7 Others  eKLR.
11.On the limb of whether or not to grant the order for re-opening the case, the case of Simba Telecom v Karuhanga & Anor  UGHC 98, Uganda High Court, Commercial Division considered an application to re-open a case for purpose of submitting fresh evidence. It referred to an Australian case of Smith v New South Wales  HCA 36;  176 CLR 256 where it was held:
12.On the issue as whether the court should allow reopening of the Plaintiff’s court, the court in Simba Telecom (supra) held;
14.The court is duty-bound to ensure that the proposed re-opening of a party’s case does not embarrass or prejudice the opposite party, Second, where the proposed re-opening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. Third, the plea for re-opening of a case will be rejected if there is inordinate and unexplained delay on part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Fifth, the evidence must be such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible.
15.In this application, the Plaintiff have argued that the documents they wish to produce before the court as new evidence will give the court an understanding of how the sale agreement for the suit property arose. They stated that the said documents were not within there their reach and had been considered lost but was discovered while reorganizing the files after the death of the Plaintiff’s director Mr.Harbans Singh.
16.The Respondents argued that the Plaintiff is seeking to fill the gaps in their case and in support relied in the case of Susan Wavinya Mutavi (supra) which is distinguishable from the present case. It is notable in Susan Wavinya case, the case had been fully heard and one of the grounds for the application was on the strength of the 1st defendant witnesses and their evidence which it was argued, would expose the applicant to extreme prejudice, loss and damage. In the instant case, the application has been made before the defence is heard and or produce their documents.
17.I have looked at the documents in subject and note that the same are correspondences between the Plaintiff and St Mary’s School with regard to Plot No 6863/80 which is the suit property. The 1st and 5th Defendants argued that St Mary’s School is not a party to this suit and the documents in subject are not direct evidence to the dispute at hand. Those are issues they can put to the witness during cross-examination once the case is opened.
18.The Respondents further argued that allowing the Plaintiff to re-open their case will tantamount to trial by ambush. The Plaintiff has not sought to amend the plaint which contains the claim. What the Plaintiff is trying to do is source evidence that will prove their case. Thus, the Respondents are aware of the claim against them and introduction of additional evidence does not equate to trial by ambush. If there is any prejudice that will be occasioned to the Respondents, the prejudice can be cured by cross-examining the witness during the hearing as well as being granted leave to call additional witnesses if they deem fit.
19.The Plaintiff has explained why they were unable to obtain and file the documents sought to be introduced earlier. The prejudice if any, to be occasioned to the Respondents can be cured because the 1st and 2nd Defendants will have an opportunity to cross examine the producer of the new evidence as well as leave to call additional witness(es) if they deem necessary. Consequently, I find no basis to refuse the orders sought in the present application. In conclusion, I do grant the orders in the application dated 11th January 2019 with costs to the Defendants/Respondents.