9.The applicant brings this application substantively under Section 1A and 1B of the Civil Procedure Rules (this should be the Act). These provisions provide as follows; -1A.Objective of Act(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.1B.Duty of Court(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology.
10.Be that as it may, the relevant law governing filing of documents by the defence is under Order 7 Rule 5 of the Civil Procedure Rules. The same provides as hereunder;Documents to accompany defence or counterclaim [Order 7, rule 5.]The defence and counterclaim filed under rule 1 and 2 shall be accompanied by—(a)an affidavit under Order 4 rule 1(2) where there is a counterclaim;(b)a list of witnesses to be called at the trial;(c)written statements signed by the witnesses except expert witnesses; and(d)copies of documents to be relied on at the trial.Provided that statements under sub-rule (c) may with leave of the court be furnished at least fifteen days prior to the trial conference under Order 11.
11.The applicant craves leave to introduce a supplementary list of witness which shows an additional two witnesses namely Benard Mbire Kihiu and Patrick Mcharo as per the proposed defendants supplementary list of witnesses dated 29/03/23. The attendant witness statement are attached. Mr. Aminga has submitted that the provisions of order 7 Rule 5 do not set out a clear cut consequences of failure to comply neither do they state that such party will be debarred from relying on witnesses or documents which were not furnished. I agree with Counsel on this proposition but it is the invitation to this court to exercise its discretion while ensuring the court does justice that behooves my focus.
12.Mr. Aminga in his supporting affidavit states that sometime on 30/01/23 when the case up for hearing, the defendant had intimated to his office his desire to have two more witnesses testify in this matter. That however the same witnesses were presented only after the Plaintiff closed its case. It is the defendant’s case that the matter was fixed for pretrial on 31/10/2022 however the court did not sit. That the failure of the court to sit contributed to the lapse in filing all witness statements as required under the provisions of Order 7 of the Civil Procedure Rules 2010. The court is also invited to invoke the provisions of order 50 of the said rules which are on enlargement of time to allow the documents on record to be admitted as filed. It is urged that the interest of justice dictate the application is allowed for substantive justice.
13.I have indeed noted from the court record that there are no proceedings for 31/10/22 when the suit had been scheduled for pretrial directions. However, the court record shows that on 10/11/22 the matter was before court. Mr. Otieno D.O appeared for the defendant where the court noted that the parties had complied. This was compliance with order 11 including order 7 rule 5 above. There was no reaction from Mr. Otieno. The court set down the suit for hearing on 30/01/23. I must respectfully state that the court in being away did not carry the registry with it and the personnel that would facilitate filing of documents. Business was running as usual in the court registry and the witness statements would have been filed then. In the event that the litigant did not present the witnesses he intended to call in good time, the same should not be attributed on the failure of the court to sit. In any event how can the failure to sit be the reason for not filing the witness statements when the disclosure on the additional witnesses was made several months after the suit had commenced. This cannot therefore be a justification on the part of the applicant. There is an attempt by Mr. Aminga to explain the delay stating in the plaintiffs submissions that the applicant resides in Nairobi while the two additional witnesses resided in Kwale and thus the difficulty to get a hold of them. It is also not clear who in the office was given this information. All this is not supported by the applicant’s affidavit and I would not place much weight on it. The court is not persuaded.
14.The plaintiff’s case is that allowing the application will prejudice its case for reasons that the defendant sat through the entire proceedings and was intent on filling up gaps to strengthen his case. The court notes that on 30/01/23 Mr. Otieno informed the court that he was ready to proceed but with the Plaintiffs case after dealing with another matter before Justice A. Nzei. The hearing proceeded at 1.15 pm where PW1 and PW2 evidence was taken including cross examination and reexamination. With this the plaintiff’s case was closed. No intimation was made to the court by Mr. Otieno whether at the beginning or at the close of the plaintiff’s case of the defendant’s intention to introduce new witnesses. This must be considered in light of Mr. Aminga’s deposition that the defendant had on the same day 30/01/23 indicated to his office his desire to have two more witnesses testify in this matter. This in my view cast a doubt on the applicants bonafides.
15.But having stated the above, I have read the authorities cited by the applicant. It is clear from the caselaw cited by the applicant that justice would require that the court must consider the import of the introduction of the evidenc,e in other words if the same will cause prejudice to the other party. See Raila Odinga Vs. IEBC and 3 Others (2013) eKLR cited by Nyakundi J in Pinnacle Projects Limited Vs. Presbyterian Church of East Africa Ngong Parisch & Another Nyakundi J stated that
16.Justice Oguttu Mboya faced with similar facts in the case of George Kimani Njuki Vs. National Land Commission & 2 Others (2022) eKLR cited by the Plaintiffs had this to say;-
17.In the case of Johana Kipkemei Too Vs Hellen Tum (2014) eKLR Justice Sila Munyao faced with similar situation stated thus; -The learned judge held that:‘I have to concur with the submissions by Mr. Wafula that the Plaintiffs will be greatly prejudiced if I am to allow this application by the defendant. The plaintiffs have already closed their case and will not have an opportunity to rebut the new evidence. it will be unfair to the plaintiffs, if I am to allow the defendant at this late stage of the proceedings ‘
18.Guided and persuaded by the above caselaw I will proceed to interrogate the proposed witness statements alongside the Defendants response to the Plaintiffs Originating Summons herein. Margaret Wambui Njuguna filed a replying affidavit sworn on 7/3/22. My perusal of the same reveals there is no deposition about the engagement of one Patrick Mcharo in 2019 to construct a fence on the suit property neither is there any mention of construction of a fence. This is a new matter being introduced in the proposed Witness statement of Patrick Mcharo (see paragraph 3 and 4 of the statement). This issue also does not feature in the witness statement of the said Margaret Wambui Njuguna dated 27/10/22. The court has also perused the witness statement of Bernard Mbire Kihiu and the same makes averments on the issue of the fence at paragraph 5 and 6 of the same. Paragraph 9 appears to me to respond to issues that arose during the proceedings (see the proceedings on the oral testimony of PW2 Eunice Mbatha Kimongo). In my view this is a material departure and goes to support the Plaintiffs concerns that the introduction is meant to bridge gaps in the Plaintiffs case. It indeed goes to the root of the Plaintiffs adverse possession claim.
19.I have noted a witness statement of Norman Njuguna Nganga attached to the application. This I will disregard because it is not attached to the proposed supplementary list of witnesses and based on Mr. Aminga’s deposition that he had intimated that he would only introduce 2 more witnesses. There was no indication he would be the third witness.
20.In the absence of any convincing reasons for introducing the two witnesses and their evidence and based on the observations above the court can safely come to the conclusion that having listened to the evidence of the plaintiff and cross examination the defendant wants to seal loopholes and or strengthen his case after consuming the proceedings during the hearing. This prejudices the Plaintiffs case.
21.The upshot of the foregoing is that the Defendants application dated 29/03/2023 lacks merit and is hereby dismissed with costs to the Plaintiff.
It is so ordered.