The defendant prays for leave to call a witness who was not listed during pretrials to produce a bundle of documents dated 24/1/2023 filed by the defendant.
The application was made after the plaintiff raised an objection to the intended production of the documents by DW1, Dr Felix Lubega.
The plaintiff contended that witness is an employee of the hospital and does not have capacity to produce hospital records in the defendants list of documents.
The plaintiff further argued that the list of witnesses by the defendant only had names of doctors and did not have any one listed as a witness intended to be called to come and produce documents of the hospital.
The plaintiff argued that she would be prejudiced as she had closed her case and she did not anticipate the production of the hospital documents.
The plaintiff further argued that they might require the documents to be analyzed by experts before production. Further, counsel for the plaintiff urged that it is not known whether the documents are introduced by the defense to cure defects noted in the ruling of the Medical Council.
The plaintiff’s contention was largely that, by attempting to call a record officer from the Hospital at this stage the Defendant would be seeking to introduce new evidence over and above the documents and evince relied on before the Medical Council which has already determined the matter.
The plaintiff is concerned that if the defendant is allowed to do so, that would lend them an opportunity recalibrate their defense long after the plaintiff has closed her case which would be grossly unfair and prejudicial to the plaintiff.
The defense response argued that the documents were served on 27/1/2021 soon after the Council made its decision and that they are the same ones used before the Medical Council.
Further, the defendant argued that the documents are necessary to refute the allegations of negligence and to present the defense case on the hospital’s care and management of the deceased patient.
The defendant explained that they intend to call the records officer to produce the documents and that to do so would not prejudice the plaintiff. The defendant concluded by arguing that their application had come at an early stage in their defense thus the plaintiff should not be heard to plead prejudice.
The plaintiff responded by stating that the application was made in the middle of the defense witness evidence and that the witness had not made any reference to the documents in his evidence and that the defense is seeking to reopen pretrial when the plaintiff has closed her case.
Analysis & Determination.
I have considered the defendants application and arguments before this court.
Order 11 was enacted to serve as case management mechanism through which parties to proceedings are able to confirm ahead of a hearing whether they are ready for hearing. The intention of the framers of the Order was to bring some degree of certainty that once a date for hearing the matter would proceed without having to adjourn to accommodate parties who are not ready.
Order 11 rule 5 (8) provides that
(8) The parties shall, not less than seven days before the date of the case management conference, serve on the other party or parties — (a) a case management request in the form set out in Appendix B setting out any orders the parties may seek at the case management conference and to which all necessary documents including draft amended pleadings, request for particulars and request for interrogatories shall be attached; or…
The interpretation of Order 11 should be in a manner that facilitates just and fair determination of cases and to overcome hurdles of past technicalities. See the case of MRADULA SURESH KANTARIA AND SURECH NANILLAL KAPTARIA CIVIL APPEAL NO. 277 OF 2005 (unreported) cited in Hunker Trading Company Limited –Vs- Elf Oil Kenya Limited [2010] eKLR
The practice would thus reduce a very lengthy waiting period that parties have had to contend with at times suffering great injustice. The order has brought certainty in trials and parties can plan accordingly whenever they have a trial or hearing ahead of them.
The court in adjudicating upon a dispute such as the one before me must remain cognizant of the greater duty of a court to do justice between the parties. The goal of the rules committee is to introduce rules that seek to hamper justice and the court must maintain some degree of flexibility in handling the matters so as to aver any prejudice to the parties. Each party must be given a fair opportunity to present their case and walk out of the corridors feeling that indeed justice was served notwithstanding the fact that the party may have lost the suit.
The Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR stated the following commenting on the right to a fair trial;-
‘’Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in the same vein Article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse.’’
The right to a fair hearing under Article 50(1) of the Constitution calls for the careful exercise of the courts authority in the adjudication of disputes capable of resolution by application of the law. The court must uphold the right of a party to ventilate his case and give the parties to a dispute ample opportunity to tender evidence that may assist help a party in advancing his case. The important matter to be borne in mind is that the other party has an opportunity to challenge that evidence.
The court must focus on the justice of the case taking into account all the circumstances of a case. The defendant in this matter wishes to be allowed to introduce a witness they had not listed in their list of witnesses. The witness sought to be called is meant to produce medical document and records which were filed and served upon the plaintiff prior to the commencement of the suit.
In a sense therefore, the only new thing would be the witness but the evidence he shall be seeking to adduce is already before the court and the plaintiff has had them all, throughout the hearing. This court finds that it should not deny the defendant that opportunity since the plaintiff shall have the right to cross examine.
The plaintiff in this courts view, would only suffer prejudice if the defendant attempted to introduce completely new evidence after the plaintiff has closed her case. The court has an overriding duty to do justice. It is precisely for that reason that the court may in exercise of its inherent power allow a witness to testify even where the witness was not included in the list of witnesses of a party if in the opinion of the court that witnesses evidence would be important in the just determination of the case.
In CALTEX OIL LIMITED –Vs- EVANSON WANJIHIA Civil Application No. Nai 190 of 2009 (unreported) the court also held that “….Although the overriding objective has several aims the principal aim is for the Court to act justly in every situation either when interpreting the law or exercising its power. The Court has therefore been given greater latitude to overcome any past technicalities which might hinder the attainment of the overriding objective .”
From the record, parties appeared before the deputy registrar on 7/6/2022 and on 27/9/2022 when the plaintiff indicated that she had complied with the filing of documents.
The defendant was given 10 days to file its documents. On the 13/6/2023 parties appeared virtually before court when they confirmed compliance and went ahead to take dates for hearing.
On 20/6/2024 the matter came for hearing, the defense told court that it would call 5 witnesses while the plaintiff said that she would testify and produce the decision of the medical council.
The plaintiff testified on 29/4/2025 and she closed her case. The defense case began on 9/6/2025 with Dw1taking to the stand on behalf of the defendant. The witness adopted his witness statement in his evidence in chief and when he was about to produce the documents contained in the defendants list of documents the plaintiff through counsel objected prompting this ruling.
The defendants list of documents is dated 24/1/2023 and a further list dated 13/7/2023 which are on the court record.
The statement of the witness was produced as Dexh 1.
The plaintiff in his objection referred this court to a list of witnesses dated 24/11/2021 filed with the statement of defense dated 24/11/2021.
The defendant’s list includes DW1. The witness statements and documents were later placed on record between January and June 202.
The defendant complied with pretrial direction and that the contested documents and witness statements were served before the plaintiff began her case.
The court finds that contrary to the plaintiff’s contention, DW1 was intended to be a witness and that the plaintiff has not been ambushed by the calling of DW1.
Since the documents were all served upon the plaintiff and the plaintiff had the advantage of reviewing them during the preparation of he case, this court finds that DW1 can comment on the documents and the defendant would be at liberty to call the records custodian of the hospital to produce them.
The plaintiff will have an opportunity to cross-examine the witness and the records custodian of the hospital when he appears.
It must however be made clear here the defendant is not at liberty to introduce any single page of a document that was not placed before the Medical Council since the plaintiff strictly confined herself to the evidence that was before the Medical Council in prosecuting her case.
Further, there will be no prejudice if the court proceeds with the documents and witness statement filed by the defense before the closure of discovery and interrogatories.
All witnesses will be cross examined and the court will remain vigilant to ensure that the defense does not venture into recalibrating its case. The witness intended to be called will tender the documents that were presented by the Hospital during the Medical Council proceedings.
The hospital has a duty to tender the records of the hospital that relate to the patient and which were produced before the Medical Council. Any attempt to introduce new evidence will not be allowed for the parties must each enjoy equal treatment before this court.
The order that commends itself to me is this, that the witness DW1 shall continue with his testimony and may refer to the documents filed in support of the defense case but production of those documents may only be done by the records management officer of the defendant.
It is so ordered.
The application was made after the plaintiff raised an objection to the intended production of the documents by DW1, Dr Felix Lubega.
The plaintiff contended that witness is an employee of the hospital and does not have capacity to produce hospital records in the defendants list of documents.
The plaintiff further argued that the list of witnesses by the defendant only had names of doctors and did not have any one listed as a witness intended to be called to come and produce documents of the hospital.
The plaintiff argued that she would be prejudiced as she had closed her case and she did not anticipate the production of the hospital documents.
The plaintiff further argued that they might require the documents to be analyzed by experts before production. Further, counsel for the plaintiff urged that it is not known whether the documents are introduced by the defense to cure defects noted in the ruling of the Medical Council.
The plaintiff’s contention was largely that, by attempting to call a record officer from the Hospital at this stage the Defendant would be seeking to introduce new evidence over and above the documents and evince relied on before the Medical Council which has already determined the matter.
The plaintiff is concerned that if the defendant is allowed to do so, that would lend them an opportunity recalibrate their defense long after the plaintiff has closed her case which would be grossly unfair and prejudicial to the plaintiff.
The defense response argued that the documents were served on 27/1/2021 soon after the Council made its decision and that they are the same ones used before the Medical Council.
Further, the defendant argued that the documents are necessary to refute the allegations of negligence and to present the defense case on the hospital’s care and management of the deceased patient.
The defendant explained that they intend to call the records officer to produce the documents and that to do so would not prejudice the plaintiff. The defendant concluded by arguing that their application had come at an early stage in their defense thus the plaintiff should not be heard to plead prejudice.
The plaintiff responded by stating that the application was made in the middle of the defense witness evidence and that the witness had not made any reference to the documents in his evidence and that the defense is seeking to reopen pretrial when the plaintiff has closed her case.
Analysis & Determination.
I have considered the defendants application and arguments before this court.
Order 11 was enacted to serve as case management mechanism through which parties to proceedings are able to confirm ahead of a hearing whether they are ready for hearing. The intention of the framers of the Order was to bring some degree of certainty that once a date for hearing the matter would proceed without having to adjourn to accommodate parties who are not ready.
Order 11 rule 5 (8) provides that
(8) The parties shall, not less than seven days before the date of the case management conference, serve on the other party or parties — (a) a case management request in the form set out in Appendix B setting out any orders the parties may seek at the case management conference and to which all necessary documents including draft amended pleadings, request for particulars and request for interrogatories shall be attached; or…
The interpretation of Order 11 should be in a manner that facilitates just and fair determination of cases and to overcome hurdles of past technicalities. See the case of MRADULA SURESH KANTARIA AND SURECH NANILLAL KAPTARIA CIVIL APPEAL NO. 277 OF 2005 (unreported) cited in Hunker Trading Company Limited –Vs- Elf Oil Kenya Limited [2010] eKLR
The practice would thus reduce a very lengthy waiting period that parties have had to contend with at times suffering great injustice. The order has brought certainty in trials and parties can plan accordingly whenever they have a trial or hearing ahead of them.
The court in adjudicating upon a dispute such as the one before me must remain cognizant of the greater duty of a court to do justice between the parties. The goal of the rules committee is to introduce rules that seek to hamper justice and the court must maintain some degree of flexibility in handling the matters so as to aver any prejudice to the parties. Each party must be given a fair opportunity to present their case and walk out of the corridors feeling that indeed justice was served notwithstanding the fact that the party may have lost the suit.
The Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR stated the following commenting on the right to a fair trial;-
‘’Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in the same vein Article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse.’’
The right to a fair hearing under Article 50(1) of the Constitution calls for the careful exercise of the courts authority in the adjudication of disputes capable of resolution by application of the law. The court must uphold the right of a party to ventilate his case and give the parties to a dispute ample opportunity to tender evidence that may assist help a party in advancing his case. The important matter to be borne in mind is that the other party has an opportunity to challenge that evidence.
The court must focus on the justice of the case taking into account all the circumstances of a case. The defendant in this matter wishes to be allowed to introduce a witness they had not listed in their list of witnesses. The witness sought to be called is meant to produce medical document and records which were filed and served upon the plaintiff prior to the commencement of the suit.
In a sense therefore, the only new thing would be the witness but the evidence he shall be seeking to adduce is already before the court and the plaintiff has had them all, throughout the hearing. This court finds that it should not deny the defendant that opportunity since the plaintiff shall have the right to cross examine.
The plaintiff in this courts view, would only suffer prejudice if the defendant attempted to introduce completely new evidence after the plaintiff has closed her case. The court has an overriding duty to do justice. It is precisely for that reason that the court may in exercise of its inherent power allow a witness to testify even where the witness was not included in the list of witnesses of a party if in the opinion of the court that witnesses evidence would be important in the just determination of the case.
In CALTEX OIL LIMITED –Vs- EVANSON WANJIHIA Civil Application No. Nai 190 of 2009 (unreported) the court also held that “….Although the overriding objective has several aims the principal aim is for the Court to act justly in every situation either when interpreting the law or exercising its power. The Court has therefore been given greater latitude to overcome any past technicalities which might hinder the attainment of the overriding objective .”
From the record, parties appeared before the deputy registrar on 7/6/2022 and on 27/9/2022 when the plaintiff indicated that she had complied with the filing of documents.
The defendant was given 10 days to file its documents. On the 13/6/2023 parties appeared virtually before court when they confirmed compliance and went ahead to take dates for hearing.
On 20/6/2024 the matter came for hearing, the defense told court that it would call 5 witnesses while the plaintiff said that she would testify and produce the decision of the medical council.
The plaintiff testified on 29/4/2025 and she closed her case. The defense case began on 9/6/2025 with Dw1taking to the stand on behalf of the defendant. The witness adopted his witness statement in his evidence in chief and when he was about to produce the documents contained in the defendants list of documents the plaintiff through counsel objected prompting this ruling.
The defendants list of documents is dated 24/1/2023 and a further list dated 13/7/2023 which are on the court record.
The statement of the witness was produced as Dexh 1.
The plaintiff in his objection referred this court to a list of witnesses dated 24/11/2021 filed with the statement of defense dated 24/11/2021.
The defendant’s list includes DW1. The witness statements and documents were later placed on record between January and June 202.
The defendant complied with pretrial direction and that the contested documents and witness statements were served before the plaintiff began her case.
The court finds that contrary to the plaintiff’s contention, DW1 was intended to be a witness and that the plaintiff has not been ambushed by the calling of DW1.
Since the documents were all served upon the plaintiff and the plaintiff had the advantage of reviewing them during the preparation of he case, this court finds that DW1 can comment on the documents and the defendant would be at liberty to call the records custodian of the hospital to produce them.
The plaintiff will have an opportunity to cross-examine the witness and the records custodian of the hospital when he appears.
It must however be made clear here the defendant is not at liberty to introduce any single page of a document that was not placed before the Medical Council since the plaintiff strictly confined herself to the evidence that was before the Medical Council in prosecuting her case.
Further, there will be no prejudice if the court proceeds with the documents and witness statement filed by the defense before the closure of discovery and interrogatories.
All witnesses will be cross examined and the court will remain vigilant to ensure that the defense does not venture into recalibrating its case. The witness intended to be called will tender the documents that were presented by the Hospital during the Medical Council proceedings.
The hospital has a duty to tender the records of the hospital that relate to the patient and which were produced before the Medical Council. Any attempt to introduce new evidence will not be allowed for the parties must each enjoy equal treatment before this court.
The order that commends itself to me is this, that the witness DW1 shall continue with his testimony and may refer to the documents filed in support of the defense case but production of those documents may only be done by the records management officer of the defendant.
It is so ordered.