The 1st respondent comes to this court vide an application dated 8th May 2026 brought under Sections IA, 1B. 3, 34 and 95, 100 of the Civil Procedure Act. Cap 21 law of Kenya. Order 8 Rule 5 and Order 11 and Order 51 of the Civil Procedure Rules Procedure Rules 2010 and Article 159 of the Constitution of Kenya and all enabling provisions of the Laws of Kenya.
He is seeking orders that the Honourable Court be pleased to grant leave and deem the Supplementary List of Documents filed and served on the 5th of May 2026 as filed on time and properly on record and that costs be provided for. The application is supported by the Affidavit of Yunus Haroon and ground of the application.
The application is made on grounds that pleadings were closed on 9th February 2026, after the matter came up for Pre-trials to confirm compliance. The matter proceeded for hearing on 26th February 2026
On the 17th April 2026, the Applicant filed an application for contempt against OCS Kiembeni Police Station, Mr. Elvis Juma and that in the said application the applicant annexed a copy of the valuation report dated 9th April 2026 as annexure Y1-1-8.
According to the applicant, the supporting affidavit in the Application dated 17th April 2026 did not contain the said annexure thus prompting the filing of a Supplementary Affidavit dated 5th May 2026 annexing the valuation report. In the said application the Petitioner in his Replying Affidavit averred that the supporting affidavit was sworn by non-director. To rebut this the Applicant filed a Further Affidavit dated 4th May 2026 as a rebuttal annexing the authority under seal. Both documents were admitted with the leave of the Court as evidence for the contempt application during the hearing of the application.
The applicant contends that the application should be allowed as the matter herein is a Constitutional Petition and because of the affidavits filed especially on the invasions by the squatters into the applicant's land (suit property), in order to have a complete record filed a Supplementary List of Documents. That the Supplementary List of Document filed and served do not prejudice in any way the Petitioner's case. That if at all the Petitioner is prejudiced he can offer a rebuttal for the same evidence and re-call its witness.
The applicant further contends that for justice to be done any party must be afforded an opportunity to present its case in the best way possible, in this case the two documents are a direct consequence of the Petitioner's invasion into the Applicants land prompting it file these documents to support its case and that it is up to the court to protect its dignity.
In the supporting affidavit, the applicant reiterates the grounds and further states that the list of Documents is solely to have a good record and is of reference for the Court during the hearing. The documents annexed are below: -
(Annexed and Marked YH-I copy of the Authority Under Seal) (Annexed and Marked YH-2 copy of the Valuation report)
THAT it is up to the court to protect its dignity.
The petitoner filed a replying affidavit sworn by Etore John Akaran who states that he has been advised by Counsel which advise verily believe to be true that the Honourable Court is a Court of record and where discretion is to be applied proportionally, expedition and substantive justice are the governing principles and that as a court of record, the Petitioners and the Respondents conducted several mentions which covered the pre-trial conference upon satisfaction of full compliance pleadings were ordered closed and the matter set down for hearing on a day to day basis.
The respondent on his part states that the Petitioners/Respondents went through the rigorous examination in chief, cross-examination and finally re-examination premised on the trial documents a heady awarded on both sides of the Petitioner/ Respondents the '15t Respondent/Applicant and the 2nd 3 rd 4th 5th 7th 8th 9th 10th 11th Respondents and the 6th Respondent.
According to the respondent, it is manifestly clear that the 1st Respondent/Applicant has presented the application dated the 8th day of May 2026 to fill gaps which have since been exposed at the close of the Petitioners case and that the 1st Petitioner/Respondent is introducing new causes of action to cure the fatal legal and procedural failures/defects which certainly deprives the 2nd 3rd Petitioners/ chance at rebuttal having already closed the case of the Petitioners/Respondents.
The couching of mandatory terms of Order 11 rule 7 of the Civil Procedure Rules as relates to Trial Conference is a hand maiden rule which is geared to ensure a smooth trial process and forbids trial by ambush which cements the thirty days (30) time schedule to ensure all documents that are to be used in trial have been exchanged.
The petitioner contends that the1st Respondent/ Applicant has clearly demonstrated bad faith, malafides and seeks to fill gaps that have openly been displayed by an affidavit in response filed in opposition to the application for contempt
Moreover that bringing such an application at the tail end of the proceedings too late in the day by the 1st Respondent/ Applicant covertly used the application for contempt to introduce fresh evidence which will not be admitted in the normal pre-trial conference module; introducing new evidence through an application other than the present application is an abuse of the Honourable court process.
The petitioner contends that the Respondent/ Applicant has had many opportunities to produce the new evidence; during the many mentions and pre-trial conferences but failed to do so, which implies that this is evidence procured after the close of the Petitioners case which is immensely prejudicial to the process at trial
The back - door reframing of the case by the 1st Respondent/ Applicant ought not be allowed, it is presently more than five months since pleadings closed the Petitioners have since closed their case and as clearly admitted by the 1st Respondent, the said anomaly and averment of directorship of the deponent of the affidavit and all consequent documents goes to the core of the entire suit, it was rebutted in affidavit in reply, this is purely an attempt to cure a defect that cannot be in any way resuscitated by the 1st Respondent,
That there is no other way, the dismissal of the application is substantive justice otherwise a whole lot of applications shall be entertained to correct anomalies found at trial by the 1st Respondent. Lastly, that as it stands, the reopening of the Petitioners case which had been closed in rebuttal to the fresh evidence being produced, will be a waste of judicious time and resources.
This court has considered the application, the reply and submissions on record and does find that the documents sought to be considered duly filed are crucial for the 1st respondent’s case and that the 1st respondent will suffer no prejudice if the same are filed.
do find that this is a constitutional petition seeking to enforce rights of the petitioner and I believe no document should be left out if it is intended to assist the court make a just decision. The application is allowed as prayed with no orders as to costs. The petitioner to file and serve a further list of documents within 5 days. Moreover, the petitioner is at liberty to reopen his case and recall his witnesses. Ruling on the contempt case on 10th of July 2026.
He is seeking orders that the Honourable Court be pleased to grant leave and deem the Supplementary List of Documents filed and served on the 5th of May 2026 as filed on time and properly on record and that costs be provided for. The application is supported by the Affidavit of Yunus Haroon and ground of the application.
The application is made on grounds that pleadings were closed on 9th February 2026, after the matter came up for Pre-trials to confirm compliance. The matter proceeded for hearing on 26th February 2026
On the 17th April 2026, the Applicant filed an application for contempt against OCS Kiembeni Police Station, Mr. Elvis Juma and that in the said application the applicant annexed a copy of the valuation report dated 9th April 2026 as annexure Y1-1-8.
According to the applicant, the supporting affidavit in the Application dated 17th April 2026 did not contain the said annexure thus prompting the filing of a Supplementary Affidavit dated 5th May 2026 annexing the valuation report. In the said application the Petitioner in his Replying Affidavit averred that the supporting affidavit was sworn by non-director. To rebut this the Applicant filed a Further Affidavit dated 4th May 2026 as a rebuttal annexing the authority under seal. Both documents were admitted with the leave of the Court as evidence for the contempt application during the hearing of the application.
The applicant contends that the application should be allowed as the matter herein is a Constitutional Petition and because of the affidavits filed especially on the invasions by the squatters into the applicant's land (suit property), in order to have a complete record filed a Supplementary List of Documents. That the Supplementary List of Document filed and served do not prejudice in any way the Petitioner's case. That if at all the Petitioner is prejudiced he can offer a rebuttal for the same evidence and re-call its witness.
The applicant further contends that for justice to be done any party must be afforded an opportunity to present its case in the best way possible, in this case the two documents are a direct consequence of the Petitioner's invasion into the Applicants land prompting it file these documents to support its case and that it is up to the court to protect its dignity.
In the supporting affidavit, the applicant reiterates the grounds and further states that the list of Documents is solely to have a good record and is of reference for the Court during the hearing. The documents annexed are below: -
(Annexed and Marked YH-I copy of the Authority Under Seal) (Annexed and Marked YH-2 copy of the Valuation report)
THAT it is up to the court to protect its dignity.
The petitoner filed a replying affidavit sworn by Etore John Akaran who states that he has been advised by Counsel which advise verily believe to be true that the Honourable Court is a Court of record and where discretion is to be applied proportionally, expedition and substantive justice are the governing principles and that as a court of record, the Petitioners and the Respondents conducted several mentions which covered the pre-trial conference upon satisfaction of full compliance pleadings were ordered closed and the matter set down for hearing on a day to day basis.
The respondent on his part states that the Petitioners/Respondents went through the rigorous examination in chief, cross-examination and finally re-examination premised on the trial documents a heady awarded on both sides of the Petitioner/ Respondents the '15t Respondent/Applicant and the 2nd 3 rd 4th 5th 7th 8th 9th 10th 11th Respondents and the 6th Respondent.
According to the respondent, it is manifestly clear that the 1st Respondent/Applicant has presented the application dated the 8th day of May 2026 to fill gaps which have since been exposed at the close of the Petitioners case and that the 1st Petitioner/Respondent is introducing new causes of action to cure the fatal legal and procedural failures/defects which certainly deprives the 2nd 3rd Petitioners/ chance at rebuttal having already closed the case of the Petitioners/Respondents.
The couching of mandatory terms of Order 11 rule 7 of the Civil Procedure Rules as relates to Trial Conference is a hand maiden rule which is geared to ensure a smooth trial process and forbids trial by ambush which cements the thirty days (30) time schedule to ensure all documents that are to be used in trial have been exchanged.
The petitioner contends that the1st Respondent/ Applicant has clearly demonstrated bad faith, malafides and seeks to fill gaps that have openly been displayed by an affidavit in response filed in opposition to the application for contempt
Moreover that bringing such an application at the tail end of the proceedings too late in the day by the 1st Respondent/ Applicant covertly used the application for contempt to introduce fresh evidence which will not be admitted in the normal pre-trial conference module; introducing new evidence through an application other than the present application is an abuse of the Honourable court process.
The petitioner contends that the Respondent/ Applicant has had many opportunities to produce the new evidence; during the many mentions and pre-trial conferences but failed to do so, which implies that this is evidence procured after the close of the Petitioners case which is immensely prejudicial to the process at trial
The back - door reframing of the case by the 1st Respondent/ Applicant ought not be allowed, it is presently more than five months since pleadings closed the Petitioners have since closed their case and as clearly admitted by the 1st Respondent, the said anomaly and averment of directorship of the deponent of the affidavit and all consequent documents goes to the core of the entire suit, it was rebutted in affidavit in reply, this is purely an attempt to cure a defect that cannot be in any way resuscitated by the 1st Respondent,
That there is no other way, the dismissal of the application is substantive justice otherwise a whole lot of applications shall be entertained to correct anomalies found at trial by the 1st Respondent. Lastly, that as it stands, the reopening of the Petitioners case which had been closed in rebuttal to the fresh evidence being produced, will be a waste of judicious time and resources.
This court has considered the application, the reply and submissions on record and does find that the documents sought to be considered duly filed are crucial for the 1st respondent’s case and that the 1st respondent will suffer no prejudice if the same are filed.
do find that this is a constitutional petition seeking to enforce rights of the petitioner and I believe no document should be left out if it is intended to assist the court make a just decision. The application is allowed as prayed with no orders as to costs. The petitioner to file and serve a further list of documents within 5 days. Moreover, the petitioner is at liberty to reopen his case and recall his witnesses. Ruling on the contempt case on 10th of July 2026.