(Being an appeal from the Ruling and Order of the Milimani Commercial Chief Magistrate's Court at Nairobi in Civil Case No. MCCC/E5110/2022 by Hon. Z. K. Kiboss, Senior Resident Magistrate, delivered on 14 th March 2024)
JUDGMENT
This appeal is preferred by Agriculture Equipment Ltd (the Appellant herein) against the Ruling and Order of the learned trial magistrate, Hon. Z.K. Kiboss , delivered on 14 th March 2024 in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
The genesis of this appeal stems from a notice of motion application dated 16 th February 2024 filed in the Lower Court by the appellant. In that application, the appellant sought to re-open the case and allow a fresh hearing of the Appellant’s (Defendant in the Lower Court) case.
The Appellant had also sought leave to file its List of documents and any evidence in support of the Counter-Claim.
The application was premised on the grounds that the appellant’s counsel had mis-diarized the matter as coming up for hearing on 21.02.24 instead of 31.01.24.
The appellant therefore did not participate in the hearing that proceeded on 31.01.24.
It was the appellant’s case that their evidence was crucial in the matter so that the court could come to a just conclusion.
The appellant had also filed a Counter-Claim in the matter and it would only be fair that they be allowed to prosecute the same.
The appellant stated that the mistake of counsel should not be visited upon the appellant.
The application was opposed by the respondent’s counsel who deposed a replying affidavit dated 28.02.24 on the grounds that the application was a delaying tactic by the appellant.
The respondent urged the court to dismiss the application.
In the impugned ruling, the learned trial magistrate exercised judicial discretion in favor of the appellant and allowed them to re-open the case and allow a fresh hearing of the appellant’s (Defendant in the Lower Court) case.
The trial magistrate did not allow the appellant’s prayer for leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
Aggrieved by that outcome, the Appellant moved this Court via a Memorandum of Appeal dated 16 th September 2024 and subsequently filed the Appellant's Written Submissions dated 19 th June 2025 .
It is imperative to note from the outset that pursuant to the Directions of this court made on 13.02.26 by the Hon. Justice Mrima in respect to filing and serving their written submissions within 14 days thereof, the Respondents did file their submissions to the Appeal.
In its Memorandum of Appeal and Written Submissions, the Appellant raised several substantive grounds, asserting that the Learned Magistrate erred in law in disallowing the Appellant leave to file its List of Documents and any other evidence in support of their Counter-Claim.
That the Learned Magistrate erred in law and fact in failing to appreciate that the Police Abstract and the documents that the Appellant sought leave to file were crucial pieces of evidence that would help the court come to a just conclusion since the police blamed the deceased for the accident.
That the Learned Magistrate erred in law in failing to appreciate that disallowing the application was tantamount to denying the Appellant a fair hearing since it denied the Appellant a fair chance to defend the suit property and prosecute its Counter-Claim.
That the Learned Magistrate erred in law and fact by partially dismissing the Appellant’s application to file further List of Documents out of time.
The Appellant submitted that the Learned Magistrate failed to consider and evaluate the Appellant's pleadings, evidence, and submissions, thereby violating the Appellant's right to a fair hearing and principles of natural justice.
Further, it was the Appellant’s submissions that the Ruling was against the weight of evidence and applicable legal principles and occasioned a miscarriage of justice.
The Appellant contended that the Ruling failed to give adequate reasons as required under both statutory and constitutional frameworks, thus rendering it fatally defective.
In analyzing the record, this court notes a distinct procedural anomaly in the Appellant's written submissions. The Appellant’s Counsel expended considerable effort arguing against the threshold of striking out pleadings under Order 2 Rule 15 of the Civil Procedure Rules , famously relying on the Locus Classicus case of D.T. Dobie & Company (Kenya) Ltd Vs Muchina (1982) KLR 1 .
However, a careful examination of the Trial Court’s certified Ruling dated 14 th March 2024 reveals that the Lower Court was not determining an application to strike out pleadings. Rather, it was purely determining an application for the grant of leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
It is noteworthy that in as much as the Appellant’s legal arguments as regards the provisions of Order 2 Rule 15 of the Civil Procedure Rules are structurally sound, they are fundamentally misdirected as they do not challenge the actual statutory provisions under which the trial magistrate made her orders.
ISSUES FOR DETERMINATION.
To dispense justice based on the true record of the Lower Court, this court finds that the following issues fall for determination of the court.
a) Whether the appeal is properly before the court.
b) Whether the Appellant’s right to be heard was infringed.
ANALYSIS AND DETERMINATION.
I have perused and considered the Memorandum of Appeal dated 16.09.24, the respective positions of the parties, their submissions and the Record of Appeal in its entirety. The application, whose Ruling is the subject of this appeal had sought an order that the Appellant be allowed to re-open the case and allow a fresh hearing of the Appellant’s (Defendant in the Lower Court) case.
The Appellant further sought for the grant of leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
The Learned Magistrate in her Ruling delivered on 14.03.24 exercised judicial discretion in favor of the Appellant and allowed them to re-open the case and have a fresh hearing of the Appellant’s (Defendant in the Lower Court) case.
The crux of the Appellant’s grievances is on the score of being denied the leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
What is clear from the record is that the Ruling and Order from which the Appellant has appealed was delivered on 14 th March, 2024.
I am alive to the mandate of a first Appellate Court as follows: -
A first Appellate Court is mandated to re-evaluate the evidence before the Trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal.
In the case of Selle & Another Vs Associated Motor Boat Co. Ltd. & Others (1968) EA 123 .
A first Appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.
Further, the Court of Appeal for East Africa in Peters Vs Sunday Post Limited (1958) E.A. Page 424 held the following: -
“It is a strong thing for an Appellate Court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
I am aware that a first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The decision of the Appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first Appellate Court had discharged the duty expected of it.
The core of this appeal challenges the trial magistrate's exercise of discretionary power. The jurisdiction of an appellate court to interfere with the exercise of discretion by a trial court is strictly circumscribed.
This court is guided by the holding by Sir Charles Newbold, P. in the Locus Classicus on this principle in the case of Mbogo & Another Vs Shah (1968) EA 93 , where the Court of Appeal enunciated: -
"An Appellate Court will not interfere with the exercise of the Trial Judge's discretion unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice."
The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system as was held in the case of Onyango Oloo Vs Attorney General (1986-1989) EA 456).
The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in the case of Sangram Singh Vs Election Tribunal, Koteh, AIR 1955 SC 664, at 711 :
“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them .”
I am guided by Section 3 of the Civil Procedure Act, where the court is empowered to invoke its special jurisdiction or power conferred, or any special form or procedure prescribed by or under any other law for the time being in force.
In addition, the court may also make orders by invoking inherent jurisdiction as stipulated in Section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
The law is settled that such mistakes by counsel, where not deliberate, should not be visited upon an innocent litigant.
In the case of Philip Chemwolo & Another Vs Augustine Kubende (1986) eKLR , Apaloo JA held:
"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits."
Similarly, in the case of Belinda Murai & 9 Others Vs Amos Wainaina eKLR , Madan JA held: -
"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by Senior Counsel... The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better."
This court is being called upon to allow the appeal and to partially set aside the ruling delivered on 14.03.24 only to the extent of disallowing the appellant leave to file its documents out of time.
I am guided by the holding of courts that to deny a litigant an opportunity to be heard should be the court’s last resort.
In Sabei District Administration Vs Gasyali & Others (1968) E.A 300 it was affirmed that to deny a party the opportunity to be heard should be an action of last resort.
The right to be heard, therefore ranks high up. This was well captured in Mbaki & Others Vs Macharia & Another (2005) EA 2006 where it was held: -
"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being offered an opportunity to be heard."
Applying these established principles to the factual matrix of this appeal, it is common ground that the appellant’s failure to participate in the hearing on 31.01.24 was occasioned by an inadvertent mistake by their previous Counsel, who had mis-diarized the matter. The Learned trial magistrate properly appreciated this fact and rightfully exercised her discretion to re-open the case, protecting the appellant from being penalized for the sins of their advocate.
However, a glaring contradiction arises in the lower court’s ultimate directions. Having found it just and equitable to allow a fresh hearing of the appellant’s case, the trial court simultaneously denied the appellant leave to file its list of documents and the crucial evidence such as the police abstract necessary to support its defense and Counter-Claim.
The Right to be heard is not merely procedural; it is substantive. Article 50 of the 2010 Constitution of Kenya establishes every citizen’s fundamental right to a fair hearing, which inherently includes the right to present relevant evidence and cross-examine witnesses.
I find and hold that by locking out the appellant’s documentary evidence, the trial court effectively neutered the defence and rendered the order to re-open the case a mere academic exercise, thus violating this Constitutional threshold of the right to fair trial.
Furthermore, the denial of this evidence contradicts the statutory imperatives of the Evidence Act (Cap 80) under Section 11(a) , that courts are mandated to admit facts which are relevant and critical to the issue at hand especially those proving or disproving liability. Given that the police abstract sought to be relied on shifted blame to the deceased for the accident, it is a highly relevant fact critical to determining liability and prosecuting the Counter-Claim.
I take note that the court cannot give with one hand and take away with the other. The trials court’s rigid stance on the delayed filing of the List of Documents offends the provisions of Article 159 (2) (d) of the 2010 Constitution, which serves as the cornerstone directive for courts to administer justice without undue regard for procedural technicalities. Since the evidence sought to be adduced is critical to determining liability in the accident and prosecuting the Counter-Claim, denying its admission occasions a gross miscarriage of justice.
Additionally, there is no party that has presented before this court any prejudice that they will suffer if the court may allow the production of the mentioned documents. The court requires that all parties should adhere to proper case management to ensure the disposal of matters is orderly and does not prejudice any party. At the same time, the court must be committed to ensuring that justice is not just done but seen to be done for all parties.
I seek reliance in the case of Ntarangwi M’Ikiara Vs Jackson Munyua Mutuera (2018) eKLR, another case cited therein is the case of Evangeline Nyegera (Suing as the Legal Representative of Felix M’Ikiugu Alias M’Ikiugu Jeremiah M’Raibuni (Deceased) Vs Godwin Gachagua Githui, where the Court of Appeal in Civil Appeal No 28 of 2016 held that; -
“The test for admission of evidence is relevance There is need for fair determination of the dispute in the suit which may not be possible if a party is denied the opportunity to adduce relevant evidence. We hold the view that the Appellant should not be barred from adducing secondary evidence through copies of the original documents. It is imperative that the nature of the documents, their number and relevance is shown. The other party will have an opportunity to cross-examine on veracity and legitimacy if it be necessary.”
Consequently, I find that the Learned trial magistrate misdirected herself in partially dismissing the application. While the appellate court exercises caution in interfering with the discretionary powers of a trial court, such interference is warranted where the exercise of that discretion results in manifest injustice, as in the case herein.
In the premises, I find merit in this appeal and proceed to make the following final orders: -
1. THAT the Appeal is hereby allowed.
2. THAT the Ruling and Order of the learned trial magistrate, Hon. Z. K. Kiboss, delivered on 14 th March 2024 in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 is hereby set aside only to the extent that it denied the Appellant leave to file its List of Documents and evidence.
3. THAT the Appellant is hereby granted leave to file and serve List of Documents and evidence in support of its Defence and Counter Claim within fourteen days from the date of this Judgment.
4. THAT in order to balance the scales of justice and mitigate the delay caused by the appellant’s counsel, there will be no order as to costs of this appeal.
Dated, Signed and delivered at KAKAMEGA virtually this 8 th day of July 2026.
D. O. ONYANGO
JUDGE.
2
JUDGMENT
This appeal is preferred by Agriculture Equipment Ltd (the Appellant herein) against the Ruling and Order of the learned trial magistrate, Hon. Z.K. Kiboss , delivered on 14 th March 2024 in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
The genesis of this appeal stems from a notice of motion application dated 16 th February 2024 filed in the Lower Court by the appellant. In that application, the appellant sought to re-open the case and allow a fresh hearing of the Appellant’s (Defendant in the Lower Court) case.
The Appellant had also sought leave to file its List of documents and any evidence in support of the Counter-Claim.
The application was premised on the grounds that the appellant’s counsel had mis-diarized the matter as coming up for hearing on 21.02.24 instead of 31.01.24.
The appellant therefore did not participate in the hearing that proceeded on 31.01.24.
It was the appellant’s case that their evidence was crucial in the matter so that the court could come to a just conclusion.
The appellant had also filed a Counter-Claim in the matter and it would only be fair that they be allowed to prosecute the same.
The appellant stated that the mistake of counsel should not be visited upon the appellant.
The application was opposed by the respondent’s counsel who deposed a replying affidavit dated 28.02.24 on the grounds that the application was a delaying tactic by the appellant.
The respondent urged the court to dismiss the application.
In the impugned ruling, the learned trial magistrate exercised judicial discretion in favor of the appellant and allowed them to re-open the case and allow a fresh hearing of the appellant’s (Defendant in the Lower Court) case.
The trial magistrate did not allow the appellant’s prayer for leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
Aggrieved by that outcome, the Appellant moved this Court via a Memorandum of Appeal dated 16 th September 2024 and subsequently filed the Appellant's Written Submissions dated 19 th June 2025 .
It is imperative to note from the outset that pursuant to the Directions of this court made on 13.02.26 by the Hon. Justice Mrima in respect to filing and serving their written submissions within 14 days thereof, the Respondents did file their submissions to the Appeal.
In its Memorandum of Appeal and Written Submissions, the Appellant raised several substantive grounds, asserting that the Learned Magistrate erred in law in disallowing the Appellant leave to file its List of Documents and any other evidence in support of their Counter-Claim.
That the Learned Magistrate erred in law and fact in failing to appreciate that the Police Abstract and the documents that the Appellant sought leave to file were crucial pieces of evidence that would help the court come to a just conclusion since the police blamed the deceased for the accident.
That the Learned Magistrate erred in law in failing to appreciate that disallowing the application was tantamount to denying the Appellant a fair hearing since it denied the Appellant a fair chance to defend the suit property and prosecute its Counter-Claim.
That the Learned Magistrate erred in law and fact by partially dismissing the Appellant’s application to file further List of Documents out of time.
The Appellant submitted that the Learned Magistrate failed to consider and evaluate the Appellant's pleadings, evidence, and submissions, thereby violating the Appellant's right to a fair hearing and principles of natural justice.
Further, it was the Appellant’s submissions that the Ruling was against the weight of evidence and applicable legal principles and occasioned a miscarriage of justice.
The Appellant contended that the Ruling failed to give adequate reasons as required under both statutory and constitutional frameworks, thus rendering it fatally defective.
In analyzing the record, this court notes a distinct procedural anomaly in the Appellant's written submissions. The Appellant’s Counsel expended considerable effort arguing against the threshold of striking out pleadings under Order 2 Rule 15 of the Civil Procedure Rules , famously relying on the Locus Classicus case of D.T. Dobie & Company (Kenya) Ltd Vs Muchina (1982) KLR 1 .
However, a careful examination of the Trial Court’s certified Ruling dated 14 th March 2024 reveals that the Lower Court was not determining an application to strike out pleadings. Rather, it was purely determining an application for the grant of leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
It is noteworthy that in as much as the Appellant’s legal arguments as regards the provisions of Order 2 Rule 15 of the Civil Procedure Rules are structurally sound, they are fundamentally misdirected as they do not challenge the actual statutory provisions under which the trial magistrate made her orders.
ISSUES FOR DETERMINATION.
To dispense justice based on the true record of the Lower Court, this court finds that the following issues fall for determination of the court.
a) Whether the appeal is properly before the court.
b) Whether the Appellant’s right to be heard was infringed.
ANALYSIS AND DETERMINATION.
I have perused and considered the Memorandum of Appeal dated 16.09.24, the respective positions of the parties, their submissions and the Record of Appeal in its entirety. The application, whose Ruling is the subject of this appeal had sought an order that the Appellant be allowed to re-open the case and allow a fresh hearing of the Appellant’s (Defendant in the Lower Court) case.
The Appellant further sought for the grant of leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
The Learned Magistrate in her Ruling delivered on 14.03.24 exercised judicial discretion in favor of the Appellant and allowed them to re-open the case and have a fresh hearing of the Appellant’s (Defendant in the Lower Court) case.
The crux of the Appellant’s grievances is on the score of being denied the leave to file its List of Documents and any evidence in support of the Counter-Claim in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 .
What is clear from the record is that the Ruling and Order from which the Appellant has appealed was delivered on 14 th March, 2024.
I am alive to the mandate of a first Appellate Court as follows: -
A first Appellate Court is mandated to re-evaluate the evidence before the Trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal.
In the case of Selle & Another Vs Associated Motor Boat Co. Ltd. & Others (1968) EA 123 .
A first Appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.
Further, the Court of Appeal for East Africa in Peters Vs Sunday Post Limited (1958) E.A. Page 424 held the following: -
“It is a strong thing for an Appellate Court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
I am aware that a first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The decision of the Appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first Appellate Court had discharged the duty expected of it.
The core of this appeal challenges the trial magistrate's exercise of discretionary power. The jurisdiction of an appellate court to interfere with the exercise of discretion by a trial court is strictly circumscribed.
This court is guided by the holding by Sir Charles Newbold, P. in the Locus Classicus on this principle in the case of Mbogo & Another Vs Shah (1968) EA 93 , where the Court of Appeal enunciated: -
"An Appellate Court will not interfere with the exercise of the Trial Judge's discretion unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice."
The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system as was held in the case of Onyango Oloo Vs Attorney General (1986-1989) EA 456).
The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in the case of Sangram Singh Vs Election Tribunal, Koteh, AIR 1955 SC 664, at 711 :
“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them .”
I am guided by Section 3 of the Civil Procedure Act, where the court is empowered to invoke its special jurisdiction or power conferred, or any special form or procedure prescribed by or under any other law for the time being in force.
In addition, the court may also make orders by invoking inherent jurisdiction as stipulated in Section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
The law is settled that such mistakes by counsel, where not deliberate, should not be visited upon an innocent litigant.
In the case of Philip Chemwolo & Another Vs Augustine Kubende (1986) eKLR , Apaloo JA held:
"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits."
Similarly, in the case of Belinda Murai & 9 Others Vs Amos Wainaina eKLR , Madan JA held: -
"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by Senior Counsel... The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better."
This court is being called upon to allow the appeal and to partially set aside the ruling delivered on 14.03.24 only to the extent of disallowing the appellant leave to file its documents out of time.
I am guided by the holding of courts that to deny a litigant an opportunity to be heard should be the court’s last resort.
In Sabei District Administration Vs Gasyali & Others (1968) E.A 300 it was affirmed that to deny a party the opportunity to be heard should be an action of last resort.
The right to be heard, therefore ranks high up. This was well captured in Mbaki & Others Vs Macharia & Another (2005) EA 2006 where it was held: -
"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being offered an opportunity to be heard."
Applying these established principles to the factual matrix of this appeal, it is common ground that the appellant’s failure to participate in the hearing on 31.01.24 was occasioned by an inadvertent mistake by their previous Counsel, who had mis-diarized the matter. The Learned trial magistrate properly appreciated this fact and rightfully exercised her discretion to re-open the case, protecting the appellant from being penalized for the sins of their advocate.
However, a glaring contradiction arises in the lower court’s ultimate directions. Having found it just and equitable to allow a fresh hearing of the appellant’s case, the trial court simultaneously denied the appellant leave to file its list of documents and the crucial evidence such as the police abstract necessary to support its defense and Counter-Claim.
The Right to be heard is not merely procedural; it is substantive. Article 50 of the 2010 Constitution of Kenya establishes every citizen’s fundamental right to a fair hearing, which inherently includes the right to present relevant evidence and cross-examine witnesses.
I find and hold that by locking out the appellant’s documentary evidence, the trial court effectively neutered the defence and rendered the order to re-open the case a mere academic exercise, thus violating this Constitutional threshold of the right to fair trial.
Furthermore, the denial of this evidence contradicts the statutory imperatives of the Evidence Act (Cap 80) under Section 11(a) , that courts are mandated to admit facts which are relevant and critical to the issue at hand especially those proving or disproving liability. Given that the police abstract sought to be relied on shifted blame to the deceased for the accident, it is a highly relevant fact critical to determining liability and prosecuting the Counter-Claim.
I take note that the court cannot give with one hand and take away with the other. The trials court’s rigid stance on the delayed filing of the List of Documents offends the provisions of Article 159 (2) (d) of the 2010 Constitution, which serves as the cornerstone directive for courts to administer justice without undue regard for procedural technicalities. Since the evidence sought to be adduced is critical to determining liability in the accident and prosecuting the Counter-Claim, denying its admission occasions a gross miscarriage of justice.
Additionally, there is no party that has presented before this court any prejudice that they will suffer if the court may allow the production of the mentioned documents. The court requires that all parties should adhere to proper case management to ensure the disposal of matters is orderly and does not prejudice any party. At the same time, the court must be committed to ensuring that justice is not just done but seen to be done for all parties.
I seek reliance in the case of Ntarangwi M’Ikiara Vs Jackson Munyua Mutuera (2018) eKLR, another case cited therein is the case of Evangeline Nyegera (Suing as the Legal Representative of Felix M’Ikiugu Alias M’Ikiugu Jeremiah M’Raibuni (Deceased) Vs Godwin Gachagua Githui, where the Court of Appeal in Civil Appeal No 28 of 2016 held that; -
“The test for admission of evidence is relevance There is need for fair determination of the dispute in the suit which may not be possible if a party is denied the opportunity to adduce relevant evidence. We hold the view that the Appellant should not be barred from adducing secondary evidence through copies of the original documents. It is imperative that the nature of the documents, their number and relevance is shown. The other party will have an opportunity to cross-examine on veracity and legitimacy if it be necessary.”
Consequently, I find that the Learned trial magistrate misdirected herself in partially dismissing the application. While the appellate court exercises caution in interfering with the discretionary powers of a trial court, such interference is warranted where the exercise of that discretion results in manifest injustice, as in the case herein.
In the premises, I find merit in this appeal and proceed to make the following final orders: -
1. THAT the Appeal is hereby allowed.
2. THAT the Ruling and Order of the learned trial magistrate, Hon. Z. K. Kiboss, delivered on 14 th March 2024 in Nairobi Milimani Commercial Court Civil Case No. MCCC/E5110/2022 is hereby set aside only to the extent that it denied the Appellant leave to file its List of Documents and evidence.
3. THAT the Appellant is hereby granted leave to file and serve List of Documents and evidence in support of its Defence and Counter Claim within fourteen days from the date of this Judgment.
4. THAT in order to balance the scales of justice and mitigate the delay caused by the appellant’s counsel, there will be no order as to costs of this appeal.
Dated, Signed and delivered at KAKAMEGA virtually this 8 th day of July 2026.
D. O. ONYANGO
JUDGE.
2