This ruling is in respect of the Plaintiff’s/Applicant’s Notice of Motion application dated 17th December, 2025 which seeks the following orders:
a. Spent
b. Spent
c. THAT the plaintiff be allowed to file further statement, call more witness and file further list of document in response to the 1st, 2nd and 3rd defendants list of documents filed on 15/10/2025, 8/12/2025 and 9/12/2025 after the plaintiff had testified on 21/11/2024 in the absence of any statements and or documents from 1st, 2nd and 3rd defendants. (sic)
d. THAT the plaintiff herein be recalled for further examination in chief and be cross examined by the defendants together with her further witnesses.
e. Costs of this application be provided for.
The application is supported by the annexed affidavit of Pacifica Moraa Kenyaga, sworn on 17th December, 2025. She deponed that the further documents that she intends to rely upon were not in her possession at the time she filed the suit. She deponed that after the hearing, she noted that she requires leave to be recalled, testify and produce evidence to counter the defendants’ evidence. She asked the court to allow her application.
Jackson Memba Ongayo, the 1st Defendant, filed a Replying Affidavit sworn on 16th January, 2026. He deponed that the Applicant’s annexures to her application do not introduce new evidence in respect of land parcel number 252 to warrant the Honourable Court to stay its proceedings and/or allow the Plaintiff to be recalled to testify again. The 1st Defendant asked the court to dismiss the Applicant’s application with costs to the Respondents.
The 2nd and 3rd Defendants filed Grounds of Opposition dated 6th February, 2026. They stated that the court documents sought to be introduced by the Plaintiff relate to different cases and are irrelevant to the instant case. They stated that the application is an abuse of court process and asked the court to dismiss the Plaintiff’s application with costs.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Plaintiff/Applicant should be allowed to file a further statement, a further list of documents and call more witnesses and in response to the 1st, 2nd and 3rd Defendant’s List of documents filed on 15th October, 2025, 8th December, 2025 and 9th December, 2025.
The Plaintiff has informed this Court that she testified on 21st November, 2024. The Court record shows that the Plaintiff/Applicant closed her case on 2nd December, 2025. The court in the case of Too v Tum [2014] KEELC 512 (KLR) at paragraph 18 stated as follows;
“the Plaintiffs will be greatly prejudiced if I am to allow this application by the Defendant. The Plaintiffs have already closed their case and will not have an opportunity to rebut the new evidence. It will be unfair to the Plaintiffs, if I am to allow the Defendant, at this late stage of the proceedings, to fundamentally alter the character of her case, to one that the Plaintiffs never contemplated when tabling their evidence. In essence, the trial will end up being unfair to the Plaintiffs and will violate the provisions of Article 50(1) of the Constitution.”
When considering whether to allow post-defence evidence in civil cases in Kenya, courts evaluate several key factors to ensure fairness and the integrity of the judicial process. In this matter, the applicant has listed the documents to be produced without demonstrating that the evidence is directly relevant and material to the issues in dispute, and capable of influencing the outcome of the case.
The documents sought to be produced are not knew and some are the record of this case. No sufficient reason for late production has been given.
The applicant has not shown that the evidence could not have been obtained with reasonable diligence before or during trial. The applicant demonstrates procedural laxity which is insufficient to warrant the court exercise its discretion to allow the application.
The application has not been made promptly upon discovery of the evidence. The delay indicates a lack of diligence or an attempt to manipulate the process.
It is my view that the Defendants will suffer great prejudice if the Plaintiff/Applicant is allowed to reopen her case at this late stage of the proceedings. The Defendants witnesses have been subjected to examination in chief, cross-examination and re-examination. I find that the Applicant’s application dated 17th December, 2025 lacks merit and is hereby dismissed with costs.
a. Spent
b. Spent
c. THAT the plaintiff be allowed to file further statement, call more witness and file further list of document in response to the 1st, 2nd and 3rd defendants list of documents filed on 15/10/2025, 8/12/2025 and 9/12/2025 after the plaintiff had testified on 21/11/2024 in the absence of any statements and or documents from 1st, 2nd and 3rd defendants. (sic)
d. THAT the plaintiff herein be recalled for further examination in chief and be cross examined by the defendants together with her further witnesses.
e. Costs of this application be provided for.
The application is supported by the annexed affidavit of Pacifica Moraa Kenyaga, sworn on 17th December, 2025. She deponed that the further documents that she intends to rely upon were not in her possession at the time she filed the suit. She deponed that after the hearing, she noted that she requires leave to be recalled, testify and produce evidence to counter the defendants’ evidence. She asked the court to allow her application.
Jackson Memba Ongayo, the 1st Defendant, filed a Replying Affidavit sworn on 16th January, 2026. He deponed that the Applicant’s annexures to her application do not introduce new evidence in respect of land parcel number 252 to warrant the Honourable Court to stay its proceedings and/or allow the Plaintiff to be recalled to testify again. The 1st Defendant asked the court to dismiss the Applicant’s application with costs to the Respondents.
The 2nd and 3rd Defendants filed Grounds of Opposition dated 6th February, 2026. They stated that the court documents sought to be introduced by the Plaintiff relate to different cases and are irrelevant to the instant case. They stated that the application is an abuse of court process and asked the court to dismiss the Plaintiff’s application with costs.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Plaintiff/Applicant should be allowed to file a further statement, a further list of documents and call more witnesses and in response to the 1st, 2nd and 3rd Defendant’s List of documents filed on 15th October, 2025, 8th December, 2025 and 9th December, 2025.
The Plaintiff has informed this Court that she testified on 21st November, 2024. The Court record shows that the Plaintiff/Applicant closed her case on 2nd December, 2025. The court in the case of Too v Tum [2014] KEELC 512 (KLR) at paragraph 18 stated as follows;
“the Plaintiffs will be greatly prejudiced if I am to allow this application by the Defendant. The Plaintiffs have already closed their case and will not have an opportunity to rebut the new evidence. It will be unfair to the Plaintiffs, if I am to allow the Defendant, at this late stage of the proceedings, to fundamentally alter the character of her case, to one that the Plaintiffs never contemplated when tabling their evidence. In essence, the trial will end up being unfair to the Plaintiffs and will violate the provisions of Article 50(1) of the Constitution.”
When considering whether to allow post-defence evidence in civil cases in Kenya, courts evaluate several key factors to ensure fairness and the integrity of the judicial process. In this matter, the applicant has listed the documents to be produced without demonstrating that the evidence is directly relevant and material to the issues in dispute, and capable of influencing the outcome of the case.
The documents sought to be produced are not knew and some are the record of this case. No sufficient reason for late production has been given.
The applicant has not shown that the evidence could not have been obtained with reasonable diligence before or during trial. The applicant demonstrates procedural laxity which is insufficient to warrant the court exercise its discretion to allow the application.
The application has not been made promptly upon discovery of the evidence. The delay indicates a lack of diligence or an attempt to manipulate the process.
It is my view that the Defendants will suffer great prejudice if the Plaintiff/Applicant is allowed to reopen her case at this late stage of the proceedings. The Defendants witnesses have been subjected to examination in chief, cross-examination and re-examination. I find that the Applicant’s application dated 17th December, 2025 lacks merit and is hereby dismissed with costs.