Muteti v Mutua & another (Civil Case E126 of 2022) [2026] KEMC 395 (KLR)
The bottom line
#A Kenyan magistrate refused a plaintiff's late attempt to add a witness statement after three years of unexplained delay, warning courts will not reward indolent parties.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are sufficient grounds to warrant extension of time for the plaintiff to file an additional witness statement
- 2.What orders should the court make with respect to costs of the application
Key legal issues
#Whether the court should extend time for filing an additional witness statement under Order 3 rule 2 and Order 50 rule 6 of the Civil Procedure Rules
The application was dismissed: there was inordinate unexplained delay of over three years, the witness statement was created on the date of the application, the affidavit was improperly sworn by counsel, and the plaintiff failed the Salat principles for extension of time.
The court held that although it has jurisdiction to enlarge time, the applicant as a party in default bears the burden of providing a full, honest and acceptable explanation. Here the proposed witness (the plaintiff's mother) was never on the list of witnesses filed in 2022, directions had been taken in 2023 with counsel confirming compliance, and the statement itself was signed and dated 6/1/2026, showing it never existed and was not inadvertently omitted. The delay defeated equity and the overriding objective.
The propriety of counsel swearing an affidavit deposing to the plaintiff's intentions and beliefs
The court found the affidavit irregular and the parties less than candid, since facts of belief and intention must be deposed to by the plaintiff personally.
Relying on Order 19 rule 3(1) of the Civil Procedure Rules and the Gerphas Alphonse Odhiambo and Kenya Horticultural Exporters authorities, the court held that affidavits must be confined to facts the deponent can prove of his own knowledge. Counsel cannot depose that the plaintiff intended and believed a witness statement had been filed; such matters are within the plaintiff's own knowledge, and it is not counsel's duty to avail witnesses.
Legal principles established
#- Extension of time is not a right of a party but an equitable remedy available at the court's discretion to a deserving party who lays a basis, including an explanation of the delay
- A party alleging excusable mistake must identify the specific mistake sought to be excused
- The overriding objective cannot be invoked as a matter of course to excuse any failing to comply with the rules
- Ordinarily an affidavit should not be sworn by an advocate on behalf of his client when the client is available to swear it
Court orders
#- 1.Dismissal of the plaintiff's application dated 6/1/2026
- 2.Costs of the application to the defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 50 rule 6 of the Civil Procedure Rules (inherent and discretionary power to enlarge time)
Relief refused
#Leave to file an additional (eye) witness statement out of time, with the further list of witnesses and witness statement deemed duly filed
Inordinate and unexplained delay of over three years; the witness statement did not exist at filing (signed 6/1/2026); counsel swore the affidavit on the plaintiff's behalf; the application was an afterthought and prejudicial
Costs
Application dismissed with costs to the defendants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, I find that the application dated 6/1/2026 is devoid of merit. I proceed to dismiss it with costs to the defendants.
Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it
A court has a duty to ensure parties are fair to each other and not conduct trial by ambush.
If a party alleges that there is an excusable mistake, such party must, in my view, be able to point out the specific mistake or error that he seeks to be excused from.
Delay is an anathema to a fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution.
Issues in the judgment
#Judgment does not state the case number, party names, or the court/station in which the suit was filed; the station is only inferred from the delivery note.
Counsel's affidavit quoted Order 18 rule 3(1) as the operative rule but the court refers to Order 19 rule 3(1) of the Civil Procedure Rules; the quoted authority itself notes the renumbering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muteti v Mutua & another (Civil Case E126 of 2022) [2026] KEMC 395 (KLR)", Case Analysis (2026). Not stated in the judgment (suit filed on 29/8/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/395/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.