' Background and Introduction
1. By an application dated 19th May 2025, the defendants seek to reopen their case, recall their witness, and introduce a supplementary list and bundle of documents. They further pray that the recalled witness be subjected to cross-examination by the plaintiffs and that the additional documents be deemed properly on record.
2. The application is opposed by way of a replying affidavit sworn by Shriram Phadke, a director of the plaintiff/respondent, on 2nd July 2025. Both parties filed written submissions, which I have also duly considered.
Analysis and Determination
3. Order 18 Rule 10 of the Civil Procedure Rules grants the court discretionary power to recall witnesses. It provides as follows:
“The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit”.
4. Such discretion must however be exercised judiciously, with due regard to the principles of fairness, justice, and the overriding objectives of the Civil Procedure Act as pronounced in Sections 1A and 1B of the Civil Procedure Act. Article 159(2)(b) of the Constitution also emphasizes the need to ensure justice is not delayed. While the court is enjoined under Article 159 to prioritize substantive justice, this must be balanced against the need for finality in litigation and the efficient administration of justice under Sections 1A and 1B, which are also elements prescribed in Article 159.
5. The parties have cited judicial precedents to support their respective positions, including Japheth v Homeland Express Limited & 6 Others (Civil Suit No. 51 of 2019) and Susan Wavinya Mutavi v Isaac Njoroge & Another (2020) eKLR.
6. The jurisprudence emerging from these and other cited decisions sets out clear criteria for determining whether a case should be reopened. First, the applicant must demonstrate that the request is made in good faith and not as a tactical maneuver intended to delay proceedings or secure an unfair advantage. Second, the evidence sought to be introduced must be both material and directly relevant to the issues in dispute, with a reasonable likelihood of influencing the outcome. Third, the applicant is required to provide a credible and satisfactory explanation for the failure to present such evidence during the initial trial.
7. Fourth, the application must not result in undue prejudice to the opposing party, particularly in terms of delay, cost, or disruption of the litigation process. Finally, the court must be satisfied that exceptional or compelling circumstances exist which warrant the exercise of its discretion to reopen the case.
8. Turning to the matter before me, the Court record reveals a pattern of delay and non-compliance of Court orders on the defendants’ part. This Court’s frustration is expressed in the directions of 16th June 2023 where it was noted that there had been a lot of delay in this matter mainly arising out of lack of proper case management on the part of the defendant…There have been in excess of 15 appearances where the defendant has failed to comply with case management directions.
9. Despite these setbacks, the matter was eventually heard and concluded on 26th September 2024. However, it was not until eight months later, that the defendants filed an application seeking to reopen the case. This prolonged interval, devoid of any explanation or proactive steps, reflects an inordinate and unjustifiable delay.
10. The explanation offered by the defendants that they inadvertently failed to produce the documents in question during trial is wholly unconvincing. This court is not confronted with a solitary oversight, but rather a troubling and sustained pattern of non-compliance, procedural laxity, and disregard for the orderly conduct of litigation. At every critical juncture, the defendants have been afforded ample opportunity to present their case in full and to file all relevant documentation. Yet, they have repeatedly failed to do so, without offering any credible justification.
11. Their conduct throughout these proceedings has been marked by delay, neglect, and a lack of diligence that borders on contempt for the judicial process. Such behavior not only undermines the integrity of the proceedings but also prejudices the opposing party that has already suffered prolonged delay of the finality of this matter and continues to expend on legal costs. It also burdens the court.
12. The cumulative effect of these failures cannot be excused under the vague and inadequate banner of inadvertence. Such abuse of process cannot be countenanced. Justice must be fair to both parties, and in this instance, the balance tilts against granting the application.
Disposition
13. Accordingly, the application dated 19th May 2025 is dismissed with costs.
'
1. By an application dated 19th May 2025, the defendants seek to reopen their case, recall their witness, and introduce a supplementary list and bundle of documents. They further pray that the recalled witness be subjected to cross-examination by the plaintiffs and that the additional documents be deemed properly on record.
2. The application is opposed by way of a replying affidavit sworn by Shriram Phadke, a director of the plaintiff/respondent, on 2nd July 2025. Both parties filed written submissions, which I have also duly considered.
Analysis and Determination
3. Order 18 Rule 10 of the Civil Procedure Rules grants the court discretionary power to recall witnesses. It provides as follows:
“The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit”.
4. Such discretion must however be exercised judiciously, with due regard to the principles of fairness, justice, and the overriding objectives of the Civil Procedure Act as pronounced in Sections 1A and 1B of the Civil Procedure Act. Article 159(2)(b) of the Constitution also emphasizes the need to ensure justice is not delayed. While the court is enjoined under Article 159 to prioritize substantive justice, this must be balanced against the need for finality in litigation and the efficient administration of justice under Sections 1A and 1B, which are also elements prescribed in Article 159.
5. The parties have cited judicial precedents to support their respective positions, including Japheth v Homeland Express Limited & 6 Others (Civil Suit No. 51 of 2019) and Susan Wavinya Mutavi v Isaac Njoroge & Another (2020) eKLR.
6. The jurisprudence emerging from these and other cited decisions sets out clear criteria for determining whether a case should be reopened. First, the applicant must demonstrate that the request is made in good faith and not as a tactical maneuver intended to delay proceedings or secure an unfair advantage. Second, the evidence sought to be introduced must be both material and directly relevant to the issues in dispute, with a reasonable likelihood of influencing the outcome. Third, the applicant is required to provide a credible and satisfactory explanation for the failure to present such evidence during the initial trial.
7. Fourth, the application must not result in undue prejudice to the opposing party, particularly in terms of delay, cost, or disruption of the litigation process. Finally, the court must be satisfied that exceptional or compelling circumstances exist which warrant the exercise of its discretion to reopen the case.
8. Turning to the matter before me, the Court record reveals a pattern of delay and non-compliance of Court orders on the defendants’ part. This Court’s frustration is expressed in the directions of 16th June 2023 where it was noted that there had been a lot of delay in this matter mainly arising out of lack of proper case management on the part of the defendant…There have been in excess of 15 appearances where the defendant has failed to comply with case management directions.
9. Despite these setbacks, the matter was eventually heard and concluded on 26th September 2024. However, it was not until eight months later, that the defendants filed an application seeking to reopen the case. This prolonged interval, devoid of any explanation or proactive steps, reflects an inordinate and unjustifiable delay.
10. The explanation offered by the defendants that they inadvertently failed to produce the documents in question during trial is wholly unconvincing. This court is not confronted with a solitary oversight, but rather a troubling and sustained pattern of non-compliance, procedural laxity, and disregard for the orderly conduct of litigation. At every critical juncture, the defendants have been afforded ample opportunity to present their case in full and to file all relevant documentation. Yet, they have repeatedly failed to do so, without offering any credible justification.
11. Their conduct throughout these proceedings has been marked by delay, neglect, and a lack of diligence that borders on contempt for the judicial process. Such behavior not only undermines the integrity of the proceedings but also prejudices the opposing party that has already suffered prolonged delay of the finality of this matter and continues to expend on legal costs. It also burdens the court.
12. The cumulative effect of these failures cannot be excused under the vague and inadequate banner of inadvertence. Such abuse of process cannot be countenanced. Justice must be fair to both parties, and in this instance, the balance tilts against granting the application.
Disposition
13. Accordingly, the application dated 19th May 2025 is dismissed with costs.
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