Background and Introduction
1. The Court is called upon to determine the defendant’s Notice of Motion dated 6th May 2025, seeking leave to file and produce in evidence further documents, specifically the charge sheet and judgment delivered on 2nd February 2018 in Mavoko Criminal Case No. 801 of 2015. These documents pertain to the theft of motor vehicle registration number KBU 715Z, which is the subject of the plaintiff’s insurance claim in this suit.
2. The plaintiff instituted the present suit in 2018 at the High Court in Makueni, seeking, inter alia, the sum of Kshs. 7,100,000/= as compensation for the theft of his insured vehicle. The suit was later transferred to this Division in 2020. The defendant denies liability, contending that the theft was not accidental but was orchestrated by the plaintiff’s authorized driver, thereby falling outside the scope of the insurance cover.
3. The applicant states that during the hearing on 1st October 2024, the plaintiff maintained that his driver was not involved in the theft and stated he was unaware of the outcome of the criminal case at Mavoko Law Courts. The defendant now seeks to introduce the charge sheet and judgment from that criminal case, in which the driver was convicted of stealing the vehicle in question.
4. The defendant avers that it had previously attempted, without success, to trace the relevant criminal case file, which was reported missing. It contends that the file was only traced on or about 27th March 2025, at which point the documents were obtained.
5. The defendant asserts that the documents are material to its defence and would enable the Court to fully and justly determine the issues in dispute. It argues that the delay in production was due to circumstances beyond its control, including the disappearance of the court file and the publication of Gazette Notice No. 14678 dated 27th October 2023, authorizing destruction of old court records.
6. The defendant maintains that no prejudice will be occasioned to the plaintiff, who may cross-examine any witnesses and, if necessary, apply to recall witnesses. On the contrary, it argues, refusal to admit the documents will cause irreparable prejudice to the defendant.
7. The plaintiff opposes the application through a replying affidavit sworn on 11th June 2025. He contends that the documents sought to be introduced have existed since 2016 (the charge sheet) and 2018 (the judgment), and were available at the time the suit was filed and even as the defence was being prepared.
8. The plaintiff submits that the defendant failed to act with due diligence and has not provided plausible reasons for the prolonged delay. He notes that the first documented attempt to obtain the file was made on 9th October 2023, five years after the suit was filed and three years after it was transferred to this Division. The second attempt was made only on 27th March 2025.
9. The plaintiff argues that the defendant had ample opportunity to request, obtain, and file the documents during the pre-trial stage, but failed to do so. He further contends that the application is designed to cure gaps exposed during the plaintiff’s testimony, and that reopening the case would prejudice him and cause unnecessary delay.
Analysis and Determination
10. The application before me is stated to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act. These provisions encapsulate the overriding objective of the Court, which is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. The relief sought is leave to file additional documents after the close of pleadings and after the hearing has already commenced.
11. It is settled law that a party seeking to introduce documents at such a stage must satisfy the Court that there exists sufficient cause for the failure to file the documents earlier, and that the delay was not the result of inexcusable indolence or want of diligence. The applicant must show that the documents could not, with reasonable effort and due diligence, have been obtained and disclosed at the appropriate time, namely, during the pre-trial stage as mandated by Order 11 of the Civil Procedure Rules.
12. The evidence before me confirms that the present suit was filed in 2018, the same year the criminal judgment the defendant seeks to rely on was delivered. This means that the judgment was not only in existence, but also readily obtainable at the time the suit was filed. The defendant therefore had full opportunity to file this evidence at the earliest stage, or during pre-trial.
13. The defendant attributes its failure to obtain the documents to the alleged loss or misplacement of the criminal case file. However, it has not demonstrated diligence in its efforts to trace the file between 2018 and 2023. The only documented attempts are the letters dated 9th October 2023 and 27th March 2025, a conspicuous gap of over five years from the date of judgment and the filing of the suit.
14. The defendant cannot now be heard to invoke Gazette Notice No. 14678 of 27th October 2023 as justification for delay when no effort was made to obtain the file between 2018 and 2023, during which the records were still intact.
15. This Court must balance the imperative to admit all relevant evidence against the duty to manage litigation efficiently and protect parties from unfair surprise. The matter is part-heard. That is a fact. The plaintiff has closed his case and one defence witness has already testified. Reopening the proceedings to admit documents long available but not acted upon would unduly prejudice the plaintiff, lead to further delay, and offend the principle of finality in litigation.
16. In my considered view, the conduct of the defendant suggests that the present application is likely driven by tactical considerations. It appears to be an attempt to bolster the defendant’s case in hindsight, following adverse testimony during the plaintiff’s case. The timing of the application, coming after the plaintiff has testified and closed his case, raises such inference that it is intended to fill evidentiary gaps that may have emerged during cross-examination or in light of the issues crystallized at trial.
17. This, in my respectful view, is not the proper purpose for which the inherent powers of the Court are intended to be exercised. The invocation of Section 3A of the Civil Procedure Act must not be used to cure the consequences of a party’s deliberate omissions. Inherent powers exist to advance the cause of justice, not to aid a litigant in reconfiguring its case midstream upon realizing the weaknesses in its initial presentation.
Final Orders
18. The Notice of Motion dated 6th May 2025 is hereby dismissed with costs.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 22nd DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. The Court is called upon to determine the defendant’s Notice of Motion dated 6th May 2025, seeking leave to file and produce in evidence further documents, specifically the charge sheet and judgment delivered on 2nd February 2018 in Mavoko Criminal Case No. 801 of 2015. These documents pertain to the theft of motor vehicle registration number KBU 715Z, which is the subject of the plaintiff’s insurance claim in this suit.
2. The plaintiff instituted the present suit in 2018 at the High Court in Makueni, seeking, inter alia, the sum of Kshs. 7,100,000/= as compensation for the theft of his insured vehicle. The suit was later transferred to this Division in 2020. The defendant denies liability, contending that the theft was not accidental but was orchestrated by the plaintiff’s authorized driver, thereby falling outside the scope of the insurance cover.
3. The applicant states that during the hearing on 1st October 2024, the plaintiff maintained that his driver was not involved in the theft and stated he was unaware of the outcome of the criminal case at Mavoko Law Courts. The defendant now seeks to introduce the charge sheet and judgment from that criminal case, in which the driver was convicted of stealing the vehicle in question.
4. The defendant avers that it had previously attempted, without success, to trace the relevant criminal case file, which was reported missing. It contends that the file was only traced on or about 27th March 2025, at which point the documents were obtained.
5. The defendant asserts that the documents are material to its defence and would enable the Court to fully and justly determine the issues in dispute. It argues that the delay in production was due to circumstances beyond its control, including the disappearance of the court file and the publication of Gazette Notice No. 14678 dated 27th October 2023, authorizing destruction of old court records.
6. The defendant maintains that no prejudice will be occasioned to the plaintiff, who may cross-examine any witnesses and, if necessary, apply to recall witnesses. On the contrary, it argues, refusal to admit the documents will cause irreparable prejudice to the defendant.
7. The plaintiff opposes the application through a replying affidavit sworn on 11th June 2025. He contends that the documents sought to be introduced have existed since 2016 (the charge sheet) and 2018 (the judgment), and were available at the time the suit was filed and even as the defence was being prepared.
8. The plaintiff submits that the defendant failed to act with due diligence and has not provided plausible reasons for the prolonged delay. He notes that the first documented attempt to obtain the file was made on 9th October 2023, five years after the suit was filed and three years after it was transferred to this Division. The second attempt was made only on 27th March 2025.
9. The plaintiff argues that the defendant had ample opportunity to request, obtain, and file the documents during the pre-trial stage, but failed to do so. He further contends that the application is designed to cure gaps exposed during the plaintiff’s testimony, and that reopening the case would prejudice him and cause unnecessary delay.
Analysis and Determination
10. The application before me is stated to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act. These provisions encapsulate the overriding objective of the Court, which is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. The relief sought is leave to file additional documents after the close of pleadings and after the hearing has already commenced.
11. It is settled law that a party seeking to introduce documents at such a stage must satisfy the Court that there exists sufficient cause for the failure to file the documents earlier, and that the delay was not the result of inexcusable indolence or want of diligence. The applicant must show that the documents could not, with reasonable effort and due diligence, have been obtained and disclosed at the appropriate time, namely, during the pre-trial stage as mandated by Order 11 of the Civil Procedure Rules.
12. The evidence before me confirms that the present suit was filed in 2018, the same year the criminal judgment the defendant seeks to rely on was delivered. This means that the judgment was not only in existence, but also readily obtainable at the time the suit was filed. The defendant therefore had full opportunity to file this evidence at the earliest stage, or during pre-trial.
13. The defendant attributes its failure to obtain the documents to the alleged loss or misplacement of the criminal case file. However, it has not demonstrated diligence in its efforts to trace the file between 2018 and 2023. The only documented attempts are the letters dated 9th October 2023 and 27th March 2025, a conspicuous gap of over five years from the date of judgment and the filing of the suit.
14. The defendant cannot now be heard to invoke Gazette Notice No. 14678 of 27th October 2023 as justification for delay when no effort was made to obtain the file between 2018 and 2023, during which the records were still intact.
15. This Court must balance the imperative to admit all relevant evidence against the duty to manage litigation efficiently and protect parties from unfair surprise. The matter is part-heard. That is a fact. The plaintiff has closed his case and one defence witness has already testified. Reopening the proceedings to admit documents long available but not acted upon would unduly prejudice the plaintiff, lead to further delay, and offend the principle of finality in litigation.
16. In my considered view, the conduct of the defendant suggests that the present application is likely driven by tactical considerations. It appears to be an attempt to bolster the defendant’s case in hindsight, following adverse testimony during the plaintiff’s case. The timing of the application, coming after the plaintiff has testified and closed his case, raises such inference that it is intended to fill evidentiary gaps that may have emerged during cross-examination or in light of the issues crystallized at trial.
17. This, in my respectful view, is not the proper purpose for which the inherent powers of the Court are intended to be exercised. The invocation of Section 3A of the Civil Procedure Act must not be used to cure the consequences of a party’s deliberate omissions. Inherent powers exist to advance the cause of justice, not to aid a litigant in reconfiguring its case midstream upon realizing the weaknesses in its initial presentation.
Final Orders
18. The Notice of Motion dated 6th May 2025 is hereby dismissed with costs.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 22nd DAY OF JULY 2025.
F. MUGAMBI
JUDGE