REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. 714 OF 2009
IN THE MATTER OF SECTIONS 84 (1) OF THE REPEALED CONSTITUTION OF KENYA
-AND-
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTIONS 72 (1), 72 (3) AND 72 (5), 74 (1), 77 (1) AND 77 (2) AND 79 (1) OF THE CONSTITUTION OF KENYA
-BETWEEN-
RUMBA KINUTHIA ................................................................. PETITIONER
-VERSUS-
THE ATTORNEY GENERAL ……………………………... RESPONDENT
RULING ON RE-OPENING OF A CLOSED CASE
1. This is one of the oldest petitions in this Court. It was filed on 24 th December 2009 and is a few months away turning 17 years old. The Application before this Court is a Notice of Motion dated 17 th December 2024 and premised on Order 8 Rules 3 (1) and Rule 5 of the Civil Procedure Rules and all other enabling provisions of the law. The Petitioner/Applicant seeks the following orders:
(1) THAT this Honourable Court be pleased to set aside, vary and/or review the proceedings and consequential orders made by this Honourable Court on 8 th June 2022.
(2) THAT this Honourable Court be pleased to re-open the Petitioner’s case.
(3) THAT this Honourable Court be pleased to allow the Petitioner to re-testify and adduce documents.
(4) THAT upon granting prayers 1, 2 and 3 hereinabove, the Honourable Court be pleased to hereby admit the main suit for pre-trial directions in and fix an early hearing date for the same.
(5) THAT this Honourable Court be pleased to allow the Petitioner to put in a further list of documents.
(6) THAT this Honourable Court be pleased to issue any further orders as may be just and expedient.
(7) THAT the costs of this Application be in the cause.
2. The Application is based on the grounds on the face of it and is further supported by the Affidavit of the Petitioner deponed on even date. The Petitioner avers that the petition proceeded for hearing on 8 th June 2022 when he was heard and the case was closed. He deposes that his Counsel inadvertently left out several crucial documents including documentation evidencing that he was a student and a student leader at the University of Nairobi as well as a refugee.
3. He avers that both he and this Counsel did not notice the error at the time of filing the pleadings and that the same became apparent after the trial by the former counsel on record. He pleads that mistake of counsel ought not to be visited on the client and he states that it would be highly prejudicial to him if the suit proceeded because the excluded documents formed the backbone of his case.
4. The Petitioner deposes that if the Court allowed the amendment of the pleadings and reopening of the Petitioner’s case, he had a strong suit against the Respondents which he would be in a position to successfully prosecute and further, that the Respondent will suffer no prejudice if the orders sought are granted in the interests of justice.
Response to the Application
5. In response to the Application, the Respondent filed a Replying Affidavit sworn by Macheso Dan Weche, Principal State Counsel, on 21 st February 2025 in which he depones that the Court should be cognizant that the Petitioner is an advocate of the High Court and also has counsel on record.
6. It is deposed that the matter is an old case dating back to 2009 and that oral evidence ( viva voce ) took place on 8 th June 2022, during which two witnesses testified and the Petitioner closed his case. It is averred that during cross-examination, the documents the Petitioner now wants to introduce were contested. That at the time, the Petitioner stated that he did not have them, did not consider them crucial to his case and chose to proceed without placing them on the record to avoid further delay.
7. The deponent states that even when they sought an adjournment to avail their witnesses, the Petitioner proposed that the Respondent’s affidavit dated 25 th November 2010 be adopted by consent to quickly move the matter along and that both parties agreed to file their final submissions. That the matter was then set for highlighting submissions on multiple dates on 8 th March 2023 and 17 th May 2024 where neither the Petitioner nor his counsel raised the issue of reopening the case for purposes of putting a further list of documents.
8. It is contended that on 8 th March 2024, the parties did not highlight their submissions because counsel for the Petitioner claimed that he was not aware that the same was to be done in open court despite taking directions from the court and that on 17 th May 2024, they again did not proceed on account of the Petitioner’s counsel being indisposed. That accordingly, the said pattern demonstrated a fishing expedition where the Petitioner awaits a favourable decision before prosecuting his case.
9. The Respondent argues that the Petitioner only attempted to introduce these crucial documents on 5 th November, 2024, after the stage for highlighting submissions was already set. The Respondent asserts that litigation must come to an end and parties should not be allowed to reopen cases simply to seal loopholes exposed during cross-examination, especially when they were already given a full chance to be heard.
The petitioner’s supplementary affidavit
10. The Petitioner filed a Supplementary Affidavit dated 14 th April 2025 in rebuttal of the Respondent’s response in which he states that the documents regarding his identity, time as a student leader at the University of Nairobi, expulsion and exile form the very basis of his lawsuit. He argues that these crucial documents were omitted purely due to an inadvertent error during the filing of pleadings, rather than by design or as an afterthought.
11. The Petitioner clarifies that during the trial, he genuinely believed the documents were already on record. He notes that his case is not yet formally closed, meaning the Respondent will still have an opportunity to cross-examine him regarding these records and asserts that the same is not an afterthought since he kept insisting during the trial that the same were on record only to find that they had been omitted.
12. The Petitioner/Applicant counters the Respondent’s timeline by stating that the matter has only been in court for pre-trial twice, that the delays in highlighting submissions were caused by the transitioning to physical highlighting directions and the transfer of the Judge who originally heard the matter.
13. The Petitioner vehemently denies being indolent, emphasizing that he has actively participated in and has never missed a single court date for this matter. He argues that an unintentional omission by counsel should not be allowed to jeopardize an innocent litigant’s case and asserts that allowing the documents is necessary for the interests of justice.
14. The parties took directions to canvass the Application by way of written submissions.
The petitioner’ Submissions
15. The Petitioner’s Submissions are dated 14 th April 2025. Counsel for the Petitioner submits on two issues namely:
i. whether the Petitioner should be allowed to add documentsst and recall the Plaintiff (sic) and
ii. who should bear the costs of the Application?
16. Counsel for the petitioner submits that the documents he seeks to introduce from The University of Nairobi and refugee documents are purely for identification to prove that the Petitioner was a student leader and a refugee, which addresses issues raised late during the trial and submissions.
17. The Petitioner’s counsel submits that the Respondent will suffer no prejudice because the documents will merely assist the Court in reaching a decision on the merits and that the Respondent will have a full opportunity to cross-examine him. The Petitioner relies on Section 78 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules regarding the court’s power to correct errors to resolve the real controversy.
18. The petitioner’s Counsel heavily invokes Article 50(1 ) of the Constitution on the right to a fair hearing and Article 159(2) of the Constitution, which mandates courts to deliver substantive justice without undue regard to procedural technicalities. The cases of Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adunda t/s Hangover Kakawacha Hotel (2022) eKLR, and Raindrops Limited v. County Government of Kilifi, (2020) eKLR are cited in support.
19. While acknowledging that this is a 17-year-old petition, the Petitioner‘s counsel argues the delay was not inordinate or due to indolence. Counsel cites the case of Raila Odinga & 5 others v. IEBC & 3 Others (2013) eKLR and Kamlesh Mansukhalal Damki Patni v Director of Public Prosecutions and 3 Others (2015) eKLR in support of the proposition that a court should be hesitant at closing the corridors of justice to a litigant.
20. It is submitted that the documents in issue were difficult to trace and that the Petitioner has historically been diligent in overcoming previous hurdles like an order striking out the suit and meritless preliminary objections. Counsel relies on the case of Cecilia Wanja Waweru v Jackson Wainaina Muiruri & Another (2014) eKLR for what constitutes inordinate delay.
21. Relying on Section 27(1) of the Civil Procedure Act and judicial commentary by Justice (Rtd) Kuloba in Judicial Hints on Civil Procedure , Counsel for the Petitioner submits that costs should follow the event, meaning the successful party in the Application should be awarded costs.
The respondent’s submissions
22. The Respondent’s (the Attorney General) Submissions are dated 21 st February 2025 . Counsel for the Respondent isolates one issue for determination being:
whether the court can reopen the Petitioner’s case and allow the Petitioner to re-testify and adduce additional evidence and produce the documents .
23. Counsel for the respondent cites the case of Rafiki Microfinance Bank Ltd. v John & Another, Civil Suit No 49 of 2022 (2023) KEHC 23779 (KLR) where the Court relied on the case of Samuel Kiti Lewa v Housing Finance Co of Kenya Ltd & Another (2015) KEHC 3930 (KLR) and the cases of Susan Wavinya Mutavi v Isaac Njoroge & Ano (2020) KEEC 8 (KLR) and Samoei v National Housing Corporation & Another, Civil Suit No. E008 of 2020 (2023) KEHC 17919 (KLR) in which the Courts discussed the issue of re-opening cases.
24. Counsel for the Respondent argues that the Application lacks merit, is an abuse of the court process and fails to meet established legal criteria for reopening a closed civil trial court case based on the several grounds. First, it is submitted that because this is an old matter initiated in 2009, the Respondent’s witnesses have likely left service, passed away, or become untraceable, making a defense untenable if the case is reopened.
25. Counsel submits that the Petitioner explicitly stated during cross-examination that these specific documents were not crucial and chose to proceed without them. They contend that the Petitioner is now trying to use this Application to seal loopholes that arose during cross-examination.
26. Counsel submits that there has been inordinate and unexplained delay because the Petitioner waited for two years from 8 th June 2022 when his case closed until 17 th December 2024 to file the application to reopen the case. The case of Edward Akong’o Oyugi & 2 Others v Attorney General (2019) KEHC 10211 (KLR) and Joseph Migere Onoo v Attorney General (2015) KEEHC 7434 (KLR) are cited in support.
27. Counsel submits that while the Petitioner blames former counsel for the mistake, he highlights that the Petitioner himself is an advocate of over 40 years of standing admitted to the bar in 1983 and therefore he should have been well-versed in court procedures. Additionally, that there is no official notice of change of advocates on record as alleged.
28. It is further submitted that the documents that the petitioner claims were inadvertently omitted were fully accessible to the Petitioner and his counsel during the original hearing, but that they deliberately chose not to introduce them. It is asserted that the excuse of mistake is not enough to explain why the Petitioner waited for two years to bring the issue. That the petitioner did not demonstrate that the evidence that he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of the case.
29. Counsel submits that the Application is characterized as a tactical ploy to delay the court process and avoid the final determination of the matter, noting that the Petitioner has previously sought multiple adjournments out of lethargy and reluctance to prosecute the case. It is the Respondent’s submission that the evidence must be such that if it is admitted, it would probably have an important influence on the result of the case, though it need not be decisive and that the Petitioner on his own stated that the documents were not crucial to his case.
30. Counsel cites the case of Dominic Arony v Attorney General High Court Civil Application No. 494 of 2003 in support of the proposition for a reasonable timing in such Applications. Counsel for the respondent asserts that reopening a case is reserved for exceptional circumstances that the Petitioner has failed to prove. He urges this Court to dismiss the application.
Analysis and Determination
31. I have considered the application, the response and the rival submissions filed by the parties’ counsel. The issue for determination is whether the Application is merited.
32. The Petitioner’s Application seeks to review and set aside the court’s prior proceedings and orders of 8 th June, 2022 and for the Petitioner to be granted leave to reopen his case, re-testify and introduce additional documents including a refugee identification card and University of Nairobi student leader documents which were allegedly omitted due to a mistake by former counsel.
33. The Petitioner’s case is that the Petition proceeded for a hearing and after he closed his case on 8 th June, 2022, he discovered that his former counsel inadvertently omitted crucial documents verifying the Petitioner's identity, specifically, documentation proving his enrolment at the University of Nairobi and his Refugee identification. He argues that leaving this error uncorrected would render the final orders nugatory and leave the pleadings defective.
34. The Court’s power to reopen a party’s case is and exercise of discretion, which discretion must be exercised judiciously and not capriciously. This is because, there is an expectation imposed upon litigating parties to place the whole of their case before the court at the time of the initial hearing. Re-opening a proceeding to introduce new or further evidence, whether done before or after a decision has been issued in the matter, is thus an extraordinary step; one that the importance of finality and quickly resolving disputes militates against taking unless exceptional circumstances are demonstrated.
35. The power to recall a witness to testify and produce additional documents is governed by Section 146 of the Evidence Act which provides:
146. Order and direction of examinations.
(1) Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined.
(2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
36. On the other hand , Order 18 Rule 10 of the Civil Procedure Rules 2010 provides that: -
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.
37. The Civil Procedure Rules under Order 11 provide for pre-trial directions which allow parties to prepare, file and exchange all pleadings for proper case management but is does not stop a court from allowing a party to introduce new documents or call witnesses in the furtherance of the interests of justice. However, each case must be considered on its own facts and merits in exercising such discretion.
38. In Aluodo v Cisco Systems Management B. V (Cause 1382 of 2018) [2023] KEELRC 825 (KLR) (13 April 2023) (Ruling) the court stated thus: -
“In deciding whether to grant a request to introduce and or produce additional records after the pretrial conference, the court has to consider: the reasons for not filing the records before the pretrial conference; the nexus and or relevance of the records to the matters in dispute; and the prejudice that the Respondent is likely to suffer as a result of granting the request and whether such prejudice can be remedied in some way.”
39. In Canada, one of the leading cases on motions to re-open case is 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, 2 SCR 983 (SCC). Where the High Court approved of the two-stage test first articulated in Scott v. Cook, [1970] OJ No. 1487, 2 OR 769 (HCJ). That test, which is intended to assist the trial judge in exercising his or her discretion to re-open the trial, requires the moving party to:
(i) show that the evidence he or she seeks to adduce is such that, if it had been presented at trial, it would probably have changed the result, and
(ii) (ii) prove that such evidence could not have been obtained by reasonable diligence before the trial.
40. Wigram V.C. in Henderson v Henderson [1843] 3 Hare 100 at page 115 where stated
“…..where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. …..”
41. As was stated by Andre J in Oakley v. Royal Bank of Canada, 2013 ONSC 145, [2013] OJ No. 109 (SC):
“10 The Court requires the parties to litigation to bring forward their whole case. … In both civil and criminal matters, the Crown or plaintiff must produce and enter in its own case all clearly relevant evidence it has. … 11 On the other hand, a trial judge has the discretion to permit a plaintiff to re-open its case. This discretion however, must be exercised judicially. It must involve a scrupulous balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice. …” (QL at para. 10-11)(Emphasis added.
42. The Canadian Encyclopedic Digest – Evidence, IV.12.(a) summarizes the typical judicial approaches employed in applications to re-open proceedings in the following passage:
“§266 Where a party wishes to adduce evidence at a late stage that does not fall within the definition of rebuttal testimony, it must seek to re-open its case. The jurisprudence has not always been consistent in establishing what is required for the granting of leave to adduce new evidence and the matter is complicated by the fact that attempts to re-open can occur after the parties have closed their case, but before judgment has been delivered; after judgment has been delivered but before that judgment has been entered; and after judgment has been entered. While some judges have advocated an unfettered approach to the trial judge’s discretion, whereby re-opening is permissible any time it is in the interests of justice to do so, the more common method of proceeding is to focus on two criteria: (1) whether the evidence - if it had been properly tendered - would probably have altered the judgment; and (2) whether the evidence could have been discovered sooner had the party applied reasonable 2 diligence. Re-opening the case is an extreme measure, and should only be allowed sparingly and with the greatest of care.
§267 While the two criteria must both be considered, the need to have exercised reasonable diligence in discovering the evidence is not absolute. The more important the evidence would be to the outcome of the case, the stronger the argument in favour of its reception. Procedural concerns such as diligence should generally give way to the demands of substantial justice where failure to do so is likely to result in an obvious injustice. Nonetheless, re-opening is unlikely to be permitted where the evidence was discovered and not adduced originally because of a tactical decision by counsel.
§268 In deciding whether to re-open, the court should also consider the complexity of the evidence and the possibility that the opposing party will need to call evidence in reply. Judges will be hesitant to re-open where it would essentially amount to a second trial. In contrast, where the evidence to be submitted is uncomplicated or undisputed, admission is more likely.” (Carswell, at para. 266-268).”
43. In Mzee Wanje & 93 Others v. A.K. Saikwa & Others (1982-88) KAR, 462 , Chesoni Ag JA (as he then was) observed as follows:
“The principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of Ladd vs. Marshall [1954] 1 WLR 1489 at 1491 and those principles are:
(a)It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(b)The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;
(c)The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
44. In Vander Ende v. Vander Ende, 2010 BCSC 597, [2010] BCJ No. 804 (SC), during final arguments in the British Columbia family law, the wife’s counsel suggested that her client be given an opportunity to re-open her case for the limited purpose of admitting into evidence a certain waiver. The husband’s counsel objected to reopening the trial and to the introduction of the waiver into evidence. In discussing the prevailing judicial approach to applications to re-open proceedings, Justice Ballance confirmed the applicable framework of analysis in the following passage:
“84 The decision to permit or disallow reopening is a matter of judicial discretion. The discretion of the trial judge presiding over a civil trial to reopen the trial before judgment has been rendered is wide. The scope of the discretion is generally narrower where judgment has been issued, and the test becomes even more rigorous depending on whether the order has or has not been entered: … While the ambit of the judicial discretion is acknowledged as being unfettered, it must be exercised cautiously so as to prevent an abuse of process: …. In considering whether to reopen, the court should turn its mind to the relevance of the proposed evidence, the effect, if any, of reopening on the orderly and expeditious conduct of the trial at large, and most fundamentally, whether the other party will be prejudiced if the reopening is permitted: R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.).” (QL at para. 84)(Emphasis added)
45. Thus, the power of the Court to re-open a trial and permit additional evidence varies depending upon the stage of the proceeding. That discretionary power must be exercised in accordance with established legal principles.
46. The petitioner in this case claims that his counsel inadvertently left out crucial documents proving his status as a refugee, student and student leader at the University of Nairobi; an error that went unnoticed by both of them until after the conduct of the case for the petitioner by former counsel. He argues that this mistake of counsel should not be visited upon him, especially since these excluded documents form the backbone of his case and that proceeding without them would be highly prejudicial.
47. The Petitioner asserts that if the Court allows him to amend the pleadings and reopen the case, he can successfully prosecute a strong petition against the Respondents, who he claims will suffer no prejudice if the orders being sought are granted and which are in the interest of justice.
48. The Respondent on the other hand contends that this is an old case dating back to 2009, noting that the Petitioner closed his case in June 2022 after witnesses testified and explicitly chose to proceed without the contested documents after stating during cross-examination that he did not have the said documents and that he did not consider them crucial.
49. The Respondent further contends that after the petitioner had testified, the petitioner was desirous of having the case expedited and so, he consented to the Respondent’s affidavit sworn by Peter Njeru Nthiga on 25 th November 2010 being adopted as the respondent’ evidence by consent, to allow parties to file final submissions.
50. The respondent argues that the petitioner never raised the issue of reopening the case during multiple subsequent submissions highlighting dates in 2023 and 2024. It is contended that the progress of the petition was repeatedly delayed due to the Petitioner’s counsel being unprepared or being indisposed. The Respondent contends further that this pattern on the part of the petitioner demonstrates a "fishing expedition." It is submitted that the Petitioner only attempted to introduce these documents in November 2024 after the submission stage was set, which reopening this court should not allow as it is simply intended to seal loopholes exposed during cross-examination and that litigation must come to an end.
51. I note that the Petitioner testified and closed his case on 8 th June 2022, four years ago. He had, prior to that, filed initial submissions dated 2 nd August 2010 while the Respondent’s submissions are dated 26 th May 2011. The Petitioner further filed Supplementary Submissions on 23 rd June 2017 and the parties took directions before Hon. Mwita J. ( as he then was) on 2 nd October 2023 to highlight those submissions.
52. No doubt, significant time has lapsed since the Petitioner’s case was closed. The time for filing of the application for reopening of his case is also inordinate because, not only was the Petition filed in 2009, but that even after the Petitioner had closed his case and appeared before the Court severally to take directions for highlighting submissions, it never occurred to him that he would need to file the said additional documents or at the very least, seek leave to reopen the case.
53. The petitioner is guilty of unreasonable delay. Further, it is not lost to this court that when the petitioner was being cross examined, he was asked about the very documents which he now alleges that they were inadvertently omitted yet he clearly stated that he did not have them. The petitioner stated as follows during cross examinations by the respondent’s counsel:
“ I was a Law Student in 3 rd year. The records at the University of Nairobi will confirm. I do not have them. I was leading a demonstreation as aleader.
There was no permit picketing…. I was arrested along Koinange Street which leads to University of Nairobi. I was staying with mys sister in Estleigh…”
54. The lapse of over two years from the date of closing his case on 8 th June, 2022 is unreasonable delay and whereas this Court is alive to the principles under Article 159 of the Constitution which require courts to administer justice without undue regard to procedural technicalities and Article 50(1) which guarantees every person the right to a fair hearing, this Court must also guard against aiding a litigant who has either slept on his rights by effluxion of time or who wakes up too late in the day to remedy their inadvertence. Moreover, Article 159 of the Constitution abhors unreasonable delay. It provides that justice shall be administered without unreasonable delay.
55. In addition, litigation must come to an end and in this case, the Petitioner’s conduct clearly demonstrates a fishing expedition rather than a bona fide pursuit of justice. This fact is exhibited in his cross-examination, wherein the Petitioner expressly stated that he did not have the contested documents.
56. I have further reviewed the court proceedings and found that it is not factual that the Petitioner admitted that he did not consider that the said documents were crucial to his case as alleged by the Respondent in their response and submissions.This notwithstanding, I note that the attempt to introduce documents only arose in November 2024, after the Court had given directions on highlighting of submissions. The timing of this is suspect to this Court because, from my reading of the proceedings on the viva voce evidence, it is clear that the documents tha
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. 714 OF 2009
IN THE MATTER OF SECTIONS 84 (1) OF THE REPEALED CONSTITUTION OF KENYA
-AND-
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTIONS 72 (1), 72 (3) AND 72 (5), 74 (1), 77 (1) AND 77 (2) AND 79 (1) OF THE CONSTITUTION OF KENYA
-BETWEEN-
RUMBA KINUTHIA ................................................................. PETITIONER
-VERSUS-
THE ATTORNEY GENERAL ……………………………... RESPONDENT
RULING ON RE-OPENING OF A CLOSED CASE
1. This is one of the oldest petitions in this Court. It was filed on 24 th December 2009 and is a few months away turning 17 years old. The Application before this Court is a Notice of Motion dated 17 th December 2024 and premised on Order 8 Rules 3 (1) and Rule 5 of the Civil Procedure Rules and all other enabling provisions of the law. The Petitioner/Applicant seeks the following orders:
(1) THAT this Honourable Court be pleased to set aside, vary and/or review the proceedings and consequential orders made by this Honourable Court on 8 th June 2022.
(2) THAT this Honourable Court be pleased to re-open the Petitioner’s case.
(3) THAT this Honourable Court be pleased to allow the Petitioner to re-testify and adduce documents.
(4) THAT upon granting prayers 1, 2 and 3 hereinabove, the Honourable Court be pleased to hereby admit the main suit for pre-trial directions in and fix an early hearing date for the same.
(5) THAT this Honourable Court be pleased to allow the Petitioner to put in a further list of documents.
(6) THAT this Honourable Court be pleased to issue any further orders as may be just and expedient.
(7) THAT the costs of this Application be in the cause.
2. The Application is based on the grounds on the face of it and is further supported by the Affidavit of the Petitioner deponed on even date. The Petitioner avers that the petition proceeded for hearing on 8 th June 2022 when he was heard and the case was closed. He deposes that his Counsel inadvertently left out several crucial documents including documentation evidencing that he was a student and a student leader at the University of Nairobi as well as a refugee.
3. He avers that both he and this Counsel did not notice the error at the time of filing the pleadings and that the same became apparent after the trial by the former counsel on record. He pleads that mistake of counsel ought not to be visited on the client and he states that it would be highly prejudicial to him if the suit proceeded because the excluded documents formed the backbone of his case.
4. The Petitioner deposes that if the Court allowed the amendment of the pleadings and reopening of the Petitioner’s case, he had a strong suit against the Respondents which he would be in a position to successfully prosecute and further, that the Respondent will suffer no prejudice if the orders sought are granted in the interests of justice.
Response to the Application
5. In response to the Application, the Respondent filed a Replying Affidavit sworn by Macheso Dan Weche, Principal State Counsel, on 21 st February 2025 in which he depones that the Court should be cognizant that the Petitioner is an advocate of the High Court and also has counsel on record.
6. It is deposed that the matter is an old case dating back to 2009 and that oral evidence ( viva voce ) took place on 8 th June 2022, during which two witnesses testified and the Petitioner closed his case. It is averred that during cross-examination, the documents the Petitioner now wants to introduce were contested. That at the time, the Petitioner stated that he did not have them, did not consider them crucial to his case and chose to proceed without placing them on the record to avoid further delay.
7. The deponent states that even when they sought an adjournment to avail their witnesses, the Petitioner proposed that the Respondent’s affidavit dated 25 th November 2010 be adopted by consent to quickly move the matter along and that both parties agreed to file their final submissions. That the matter was then set for highlighting submissions on multiple dates on 8 th March 2023 and 17 th May 2024 where neither the Petitioner nor his counsel raised the issue of reopening the case for purposes of putting a further list of documents.
8. It is contended that on 8 th March 2024, the parties did not highlight their submissions because counsel for the Petitioner claimed that he was not aware that the same was to be done in open court despite taking directions from the court and that on 17 th May 2024, they again did not proceed on account of the Petitioner’s counsel being indisposed. That accordingly, the said pattern demonstrated a fishing expedition where the Petitioner awaits a favourable decision before prosecuting his case.
9. The Respondent argues that the Petitioner only attempted to introduce these crucial documents on 5 th November, 2024, after the stage for highlighting submissions was already set. The Respondent asserts that litigation must come to an end and parties should not be allowed to reopen cases simply to seal loopholes exposed during cross-examination, especially when they were already given a full chance to be heard.
The petitioner’s supplementary affidavit
10. The Petitioner filed a Supplementary Affidavit dated 14 th April 2025 in rebuttal of the Respondent’s response in which he states that the documents regarding his identity, time as a student leader at the University of Nairobi, expulsion and exile form the very basis of his lawsuit. He argues that these crucial documents were omitted purely due to an inadvertent error during the filing of pleadings, rather than by design or as an afterthought.
11. The Petitioner clarifies that during the trial, he genuinely believed the documents were already on record. He notes that his case is not yet formally closed, meaning the Respondent will still have an opportunity to cross-examine him regarding these records and asserts that the same is not an afterthought since he kept insisting during the trial that the same were on record only to find that they had been omitted.
12. The Petitioner/Applicant counters the Respondent’s timeline by stating that the matter has only been in court for pre-trial twice, that the delays in highlighting submissions were caused by the transitioning to physical highlighting directions and the transfer of the Judge who originally heard the matter.
13. The Petitioner vehemently denies being indolent, emphasizing that he has actively participated in and has never missed a single court date for this matter. He argues that an unintentional omission by counsel should not be allowed to jeopardize an innocent litigant’s case and asserts that allowing the documents is necessary for the interests of justice.
14. The parties took directions to canvass the Application by way of written submissions.
The petitioner’ Submissions
15. The Petitioner’s Submissions are dated 14 th April 2025. Counsel for the Petitioner submits on two issues namely:
i. whether the Petitioner should be allowed to add documentsst and recall the Plaintiff (sic) and
ii. who should bear the costs of the Application?
16. Counsel for the petitioner submits that the documents he seeks to introduce from The University of Nairobi and refugee documents are purely for identification to prove that the Petitioner was a student leader and a refugee, which addresses issues raised late during the trial and submissions.
17. The Petitioner’s counsel submits that the Respondent will suffer no prejudice because the documents will merely assist the Court in reaching a decision on the merits and that the Respondent will have a full opportunity to cross-examine him. The Petitioner relies on Section 78 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules regarding the court’s power to correct errors to resolve the real controversy.
18. The petitioner’s Counsel heavily invokes Article 50(1 ) of the Constitution on the right to a fair hearing and Article 159(2) of the Constitution, which mandates courts to deliver substantive justice without undue regard to procedural technicalities. The cases of Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adunda t/s Hangover Kakawacha Hotel (2022) eKLR, and Raindrops Limited v. County Government of Kilifi, (2020) eKLR are cited in support.
19. While acknowledging that this is a 17-year-old petition, the Petitioner‘s counsel argues the delay was not inordinate or due to indolence. Counsel cites the case of Raila Odinga & 5 others v. IEBC & 3 Others (2013) eKLR and Kamlesh Mansukhalal Damki Patni v Director of Public Prosecutions and 3 Others (2015) eKLR in support of the proposition that a court should be hesitant at closing the corridors of justice to a litigant.
20. It is submitted that the documents in issue were difficult to trace and that the Petitioner has historically been diligent in overcoming previous hurdles like an order striking out the suit and meritless preliminary objections. Counsel relies on the case of Cecilia Wanja Waweru v Jackson Wainaina Muiruri & Another (2014) eKLR for what constitutes inordinate delay.
21. Relying on Section 27(1) of the Civil Procedure Act and judicial commentary by Justice (Rtd) Kuloba in Judicial Hints on Civil Procedure , Counsel for the Petitioner submits that costs should follow the event, meaning the successful party in the Application should be awarded costs.
The respondent’s submissions
22. The Respondent’s (the Attorney General) Submissions are dated 21 st February 2025 . Counsel for the Respondent isolates one issue for determination being:
whether the court can reopen the Petitioner’s case and allow the Petitioner to re-testify and adduce additional evidence and produce the documents .
23. Counsel for the respondent cites the case of Rafiki Microfinance Bank Ltd. v John & Another, Civil Suit No 49 of 2022 (2023) KEHC 23779 (KLR) where the Court relied on the case of Samuel Kiti Lewa v Housing Finance Co of Kenya Ltd & Another (2015) KEHC 3930 (KLR) and the cases of Susan Wavinya Mutavi v Isaac Njoroge & Ano (2020) KEEC 8 (KLR) and Samoei v National Housing Corporation & Another, Civil Suit No. E008 of 2020 (2023) KEHC 17919 (KLR) in which the Courts discussed the issue of re-opening cases.
24. Counsel for the Respondent argues that the Application lacks merit, is an abuse of the court process and fails to meet established legal criteria for reopening a closed civil trial court case based on the several grounds. First, it is submitted that because this is an old matter initiated in 2009, the Respondent’s witnesses have likely left service, passed away, or become untraceable, making a defense untenable if the case is reopened.
25. Counsel submits that the Petitioner explicitly stated during cross-examination that these specific documents were not crucial and chose to proceed without them. They contend that the Petitioner is now trying to use this Application to seal loopholes that arose during cross-examination.
26. Counsel submits that there has been inordinate and unexplained delay because the Petitioner waited for two years from 8 th June 2022 when his case closed until 17 th December 2024 to file the application to reopen the case. The case of Edward Akong’o Oyugi & 2 Others v Attorney General (2019) KEHC 10211 (KLR) and Joseph Migere Onoo v Attorney General (2015) KEEHC 7434 (KLR) are cited in support.
27. Counsel submits that while the Petitioner blames former counsel for the mistake, he highlights that the Petitioner himself is an advocate of over 40 years of standing admitted to the bar in 1983 and therefore he should have been well-versed in court procedures. Additionally, that there is no official notice of change of advocates on record as alleged.
28. It is further submitted that the documents that the petitioner claims were inadvertently omitted were fully accessible to the Petitioner and his counsel during the original hearing, but that they deliberately chose not to introduce them. It is asserted that the excuse of mistake is not enough to explain why the Petitioner waited for two years to bring the issue. That the petitioner did not demonstrate that the evidence that he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of the case.
29. Counsel submits that the Application is characterized as a tactical ploy to delay the court process and avoid the final determination of the matter, noting that the Petitioner has previously sought multiple adjournments out of lethargy and reluctance to prosecute the case. It is the Respondent’s submission that the evidence must be such that if it is admitted, it would probably have an important influence on the result of the case, though it need not be decisive and that the Petitioner on his own stated that the documents were not crucial to his case.
30. Counsel cites the case of Dominic Arony v Attorney General High Court Civil Application No. 494 of 2003 in support of the proposition for a reasonable timing in such Applications. Counsel for the respondent asserts that reopening a case is reserved for exceptional circumstances that the Petitioner has failed to prove. He urges this Court to dismiss the application.
Analysis and Determination
31. I have considered the application, the response and the rival submissions filed by the parties’ counsel. The issue for determination is whether the Application is merited.
32. The Petitioner’s Application seeks to review and set aside the court’s prior proceedings and orders of 8 th June, 2022 and for the Petitioner to be granted leave to reopen his case, re-testify and introduce additional documents including a refugee identification card and University of Nairobi student leader documents which were allegedly omitted due to a mistake by former counsel.
33. The Petitioner’s case is that the Petition proceeded for a hearing and after he closed his case on 8 th June, 2022, he discovered that his former counsel inadvertently omitted crucial documents verifying the Petitioner's identity, specifically, documentation proving his enrolment at the University of Nairobi and his Refugee identification. He argues that leaving this error uncorrected would render the final orders nugatory and leave the pleadings defective.
34. The Court’s power to reopen a party’s case is and exercise of discretion, which discretion must be exercised judiciously and not capriciously. This is because, there is an expectation imposed upon litigating parties to place the whole of their case before the court at the time of the initial hearing. Re-opening a proceeding to introduce new or further evidence, whether done before or after a decision has been issued in the matter, is thus an extraordinary step; one that the importance of finality and quickly resolving disputes militates against taking unless exceptional circumstances are demonstrated.
35. The power to recall a witness to testify and produce additional documents is governed by Section 146 of the Evidence Act which provides:
146. Order and direction of examinations.
(1) Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined.
(2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
36. On the other hand , Order 18 Rule 10 of the Civil Procedure Rules 2010 provides that: -
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.
37. The Civil Procedure Rules under Order 11 provide for pre-trial directions which allow parties to prepare, file and exchange all pleadings for proper case management but is does not stop a court from allowing a party to introduce new documents or call witnesses in the furtherance of the interests of justice. However, each case must be considered on its own facts and merits in exercising such discretion.
38. In Aluodo v Cisco Systems Management B. V (Cause 1382 of 2018) [2023] KEELRC 825 (KLR) (13 April 2023) (Ruling) the court stated thus: -
“In deciding whether to grant a request to introduce and or produce additional records after the pretrial conference, the court has to consider: the reasons for not filing the records before the pretrial conference; the nexus and or relevance of the records to the matters in dispute; and the prejudice that the Respondent is likely to suffer as a result of granting the request and whether such prejudice can be remedied in some way.”
39. In Canada, one of the leading cases on motions to re-open case is 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, 2 SCR 983 (SCC). Where the High Court approved of the two-stage test first articulated in Scott v. Cook, [1970] OJ No. 1487, 2 OR 769 (HCJ). That test, which is intended to assist the trial judge in exercising his or her discretion to re-open the trial, requires the moving party to:
(i) show that the evidence he or she seeks to adduce is such that, if it had been presented at trial, it would probably have changed the result, and
(ii) (ii) prove that such evidence could not have been obtained by reasonable diligence before the trial.
40. Wigram V.C. in Henderson v Henderson [1843] 3 Hare 100 at page 115 where stated
“…..where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. …..”
41. As was stated by Andre J in Oakley v. Royal Bank of Canada, 2013 ONSC 145, [2013] OJ No. 109 (SC):
“10 The Court requires the parties to litigation to bring forward their whole case. … In both civil and criminal matters, the Crown or plaintiff must produce and enter in its own case all clearly relevant evidence it has. … 11 On the other hand, a trial judge has the discretion to permit a plaintiff to re-open its case. This discretion however, must be exercised judicially. It must involve a scrupulous balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice. …” (QL at para. 10-11)(Emphasis added.
42. The Canadian Encyclopedic Digest – Evidence, IV.12.(a) summarizes the typical judicial approaches employed in applications to re-open proceedings in the following passage:
“§266 Where a party wishes to adduce evidence at a late stage that does not fall within the definition of rebuttal testimony, it must seek to re-open its case. The jurisprudence has not always been consistent in establishing what is required for the granting of leave to adduce new evidence and the matter is complicated by the fact that attempts to re-open can occur after the parties have closed their case, but before judgment has been delivered; after judgment has been delivered but before that judgment has been entered; and after judgment has been entered. While some judges have advocated an unfettered approach to the trial judge’s discretion, whereby re-opening is permissible any time it is in the interests of justice to do so, the more common method of proceeding is to focus on two criteria: (1) whether the evidence - if it had been properly tendered - would probably have altered the judgment; and (2) whether the evidence could have been discovered sooner had the party applied reasonable 2 diligence. Re-opening the case is an extreme measure, and should only be allowed sparingly and with the greatest of care.
§267 While the two criteria must both be considered, the need to have exercised reasonable diligence in discovering the evidence is not absolute. The more important the evidence would be to the outcome of the case, the stronger the argument in favour of its reception. Procedural concerns such as diligence should generally give way to the demands of substantial justice where failure to do so is likely to result in an obvious injustice. Nonetheless, re-opening is unlikely to be permitted where the evidence was discovered and not adduced originally because of a tactical decision by counsel.
§268 In deciding whether to re-open, the court should also consider the complexity of the evidence and the possibility that the opposing party will need to call evidence in reply. Judges will be hesitant to re-open where it would essentially amount to a second trial. In contrast, where the evidence to be submitted is uncomplicated or undisputed, admission is more likely.” (Carswell, at para. 266-268).”
43. In Mzee Wanje & 93 Others v. A.K. Saikwa & Others (1982-88) KAR, 462 , Chesoni Ag JA (as he then was) observed as follows:
“The principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of Ladd vs. Marshall [1954] 1 WLR 1489 at 1491 and those principles are:
(a)It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(b)The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;
(c)The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
44. In Vander Ende v. Vander Ende, 2010 BCSC 597, [2010] BCJ No. 804 (SC), during final arguments in the British Columbia family law, the wife’s counsel suggested that her client be given an opportunity to re-open her case for the limited purpose of admitting into evidence a certain waiver. The husband’s counsel objected to reopening the trial and to the introduction of the waiver into evidence. In discussing the prevailing judicial approach to applications to re-open proceedings, Justice Ballance confirmed the applicable framework of analysis in the following passage:
“84 The decision to permit or disallow reopening is a matter of judicial discretion. The discretion of the trial judge presiding over a civil trial to reopen the trial before judgment has been rendered is wide. The scope of the discretion is generally narrower where judgment has been issued, and the test becomes even more rigorous depending on whether the order has or has not been entered: … While the ambit of the judicial discretion is acknowledged as being unfettered, it must be exercised cautiously so as to prevent an abuse of process: …. In considering whether to reopen, the court should turn its mind to the relevance of the proposed evidence, the effect, if any, of reopening on the orderly and expeditious conduct of the trial at large, and most fundamentally, whether the other party will be prejudiced if the reopening is permitted: R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.).” (QL at para. 84)(Emphasis added)
45. Thus, the power of the Court to re-open a trial and permit additional evidence varies depending upon the stage of the proceeding. That discretionary power must be exercised in accordance with established legal principles.
46. The petitioner in this case claims that his counsel inadvertently left out crucial documents proving his status as a refugee, student and student leader at the University of Nairobi; an error that went unnoticed by both of them until after the conduct of the case for the petitioner by former counsel. He argues that this mistake of counsel should not be visited upon him, especially since these excluded documents form the backbone of his case and that proceeding without them would be highly prejudicial.
47. The Petitioner asserts that if the Court allows him to amend the pleadings and reopen the case, he can successfully prosecute a strong petition against the Respondents, who he claims will suffer no prejudice if the orders being sought are granted and which are in the interest of justice.
48. The Respondent on the other hand contends that this is an old case dating back to 2009, noting that the Petitioner closed his case in June 2022 after witnesses testified and explicitly chose to proceed without the contested documents after stating during cross-examination that he did not have the said documents and that he did not consider them crucial.
49. The Respondent further contends that after the petitioner had testified, the petitioner was desirous of having the case expedited and so, he consented to the Respondent’s affidavit sworn by Peter Njeru Nthiga on 25 th November 2010 being adopted as the respondent’ evidence by consent, to allow parties to file final submissions.
50. The respondent argues that the petitioner never raised the issue of reopening the case during multiple subsequent submissions highlighting dates in 2023 and 2024. It is contended that the progress of the petition was repeatedly delayed due to the Petitioner’s counsel being unprepared or being indisposed. The Respondent contends further that this pattern on the part of the petitioner demonstrates a "fishing expedition." It is submitted that the Petitioner only attempted to introduce these documents in November 2024 after the submission stage was set, which reopening this court should not allow as it is simply intended to seal loopholes exposed during cross-examination and that litigation must come to an end.
51. I note that the Petitioner testified and closed his case on 8 th June 2022, four years ago. He had, prior to that, filed initial submissions dated 2 nd August 2010 while the Respondent’s submissions are dated 26 th May 2011. The Petitioner further filed Supplementary Submissions on 23 rd June 2017 and the parties took directions before Hon. Mwita J. ( as he then was) on 2 nd October 2023 to highlight those submissions.
52. No doubt, significant time has lapsed since the Petitioner’s case was closed. The time for filing of the application for reopening of his case is also inordinate because, not only was the Petition filed in 2009, but that even after the Petitioner had closed his case and appeared before the Court severally to take directions for highlighting submissions, it never occurred to him that he would need to file the said additional documents or at the very least, seek leave to reopen the case.
53. The petitioner is guilty of unreasonable delay. Further, it is not lost to this court that when the petitioner was being cross examined, he was asked about the very documents which he now alleges that they were inadvertently omitted yet he clearly stated that he did not have them. The petitioner stated as follows during cross examinations by the respondent’s counsel:
“ I was a Law Student in 3 rd year. The records at the University of Nairobi will confirm. I do not have them. I was leading a demonstreation as aleader.
There was no permit picketing…. I was arrested along Koinange Street which leads to University of Nairobi. I was staying with mys sister in Estleigh…”
54. The lapse of over two years from the date of closing his case on 8 th June, 2022 is unreasonable delay and whereas this Court is alive to the principles under Article 159 of the Constitution which require courts to administer justice without undue regard to procedural technicalities and Article 50(1) which guarantees every person the right to a fair hearing, this Court must also guard against aiding a litigant who has either slept on his rights by effluxion of time or who wakes up too late in the day to remedy their inadvertence. Moreover, Article 159 of the Constitution abhors unreasonable delay. It provides that justice shall be administered without unreasonable delay.
55. In addition, litigation must come to an end and in this case, the Petitioner’s conduct clearly demonstrates a fishing expedition rather than a bona fide pursuit of justice. This fact is exhibited in his cross-examination, wherein the Petitioner expressly stated that he did not have the contested documents.
56. I have further reviewed the court proceedings and found that it is not factual that the Petitioner admitted that he did not consider that the said documents were crucial to his case as alleged by the Respondent in their response and submissions.This notwithstanding, I note that the attempt to introduce documents only arose in November 2024, after the Court had given directions on highlighting of submissions. The timing of this is suspect to this Court because, from my reading of the proceedings on the viva voce evidence, it is clear that the documents tha
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