Philomena Makenzi Mutindi v George Mutisya Mutonde & 7 others

5) THAT costs of this application be in the cause. 3. The application is premised on the grounds appearing on its face. It is also supported by the affidavit of George M. Mutonde sworn on even date on his behalf and that of his Co-applicants. The deponent averred that during the hearing of this matter on 15th May, 2025, the Plaintiff admitted to have sold to him ten (10) plots which formed part of her father’s estate. That in his testimony, the Plaintiff’s witness, Peter Mutuku Mackenzie admitted that they sold the said ten plots prior to completion of the succession cause relating to the Plaintiff’s father’s estate and that the deponent’s name was included in the certificate of confirmed grant. 4. The deponent contended that in disputing having sold the current property, the Plaintiff held the position that the copies of the Land Board forms and consent towards transfer of the suit land as filed in the deponent’s list of documents, were obtained towards transfer of the ten plots. The deponent refuted that position. He averred that he had been able to obtain details of the succession cause relating to the Plaintiff’s father being Succession Cause No. 70 of 2012 together with a copy of the certificate of confirmation of grant. 5. The deponent contended that the confirmed grant captures his name and the consolidated portions of land sold to him as measuring 0.502 hectares. He added that after confirmation of grant but prior to transmission of titles, one Kiswii Kanyele, a relative of the Plaintiff sold another portion of land within Makueni/Unoa/39 measuring 0.315 hectares. That upon visiting the land board for subdivision, the said portion was included together with the other plots sold to generate land Parcel No. MAKUENI/UNOA/2983 measuring 0.817 hectares. ELC NO. E031 OF 2022 2|Page

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In addition, he had also obtained a copy of the map for the mutated plot number MAKUENI/UNOA/39. 6. It is the deponent’s case that the additional documents give the history of the suit property and the ten plots which the Plaintiff admitted to selling. He averred that the said documents are relevant to the fair and just determination of the case. 7. Opposing the application, the Plaintiff filed a replying affidavit sworn by herself on 26th February, 2026. She averred that the application violates the rules of procedure as pleadings have long been closed. It was further contended that some of the Plaintiff’s witnesses have already testified and have been cross-examined. The Plaintiff contended that there is no legal requirement that all the evidence that a witness gives in court must be written down wholly in the witness statement. 8. She asserted that having already testified, allowing the application will occasion prejudice to her as she would have no opportunity to give evidence based on the documents which the 1st Defendant wishes to introduce. It was her contention that the Defendants’ Counsel did not object to any evidence adduced by PW1 and PW2 on 15th May, 2025. She held the view that the application is an afterthought and delaying tactic. She urged the court to dismiss the application with costs. 9. The application was canvassed by way of written submissions. 10.In the Defendants’ submissions dated 14th April, 2026, Counsel submitted that it was an undisputed position that during the hearing of the Plaintiff’s case, PW1 and PW2 introduced new evidence that was not captured in their witness statements. That the certificate of confirmation of grant and the land board consent dated 25/7/2013 seek to demonstrate that the transfer of the ten plots ELC NO. E031 OF 2022 3|Page

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was done during transmission of the estate by the administrators and as such a land board consent to transfer was not legally required. 11.Relying on the decision of the Supreme Court in Jirongo v Soy Developers Limited & 9 others [2020] KESC 38 (KLR), Counsel submitted that the Applicants could not have procured the additional documents with reasonable diligence. Counsel maintained that the Respondent will suffer no prejudice as leave may also be granted to them if necessary to rebut the documents. In totality, the Applicants maintain that the right to a fair hearing will be upheld by allowing the application as sought. 12.In the Respondent’s submissions dated 19th March, 2026, Counsel submitted that the Applicants had failed to demonstrate that they could not have procured and filed the further evidence before trial began and that none of the documents were beyond the Applicants’ reach. Counsel contended that it would be unfair and detrimental to the Plaintiff’s case if the application is allowed because the Plaintiff may not have the chance to testify afresh and respond sufficiently. 13.Counsel dismissed the Defendants’ application as an attempt to fill in lacunae to their case. Reliance was placed on the case of Freedom Limited v Mbarak [2024] KESC 76 (KLR) to buttress the Respondent’s submissions and to urge the court to dismiss the application with costs. 14.The sole issue for determination is whether the Applicant has demonstrated merit in the application for leave to produce additional documents. 15.In Odoyo Osodo v Rael Obara Ojuok & 4 others [2017] eKLR, the Court outlined the basis upon which the court’s discretion can be exercised as follows:“The discretion of the court cannot be exercised whimsically but ought only to be exercised judicially and judiciously. A basis for the exercise of ELC NO. E031 OF 2022 4|Page

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discretion has to be laid by the party inviting the court to exercise its discretion.” 16.In the case of Raila Amollo Odinga & 5 Others v IEBC & 3 Others [2013] eKLR, the Supreme Court aptly held as follows: “The parties have a duty to ensure they comply with their respective time – lines, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided. The other issue the court must consider when exercising its discretion to allow a further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small or limited so that the other party is able to respond to it, then the court ought to be considerate, taking into account all aspects of the matter. However, if the new material is so substantial involving not only a further affidavit but massive additional evidence, so as to make it difficult or impossible for the other party to respond effectively, the court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence.” 17.Again, in Attorney General v Zinj Limited [2021] eKLR, the Supreme Court reasserted some of the considerations to be made when granting an application for leave to adduce additional evidence as follows: i. Direct relevance of the additional evidence must be shown to the matter before the court and the interest of justice; ii. If given, the additional evidence would influence or impact upon the result of the verdict, although it need not be decisive; ELC NO. E031 OF 2022 5|Page

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iii. The additional evidence could not have been obtained with reasonable diligence for use at the trial or it was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; iv. The additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; v. The evidence must be credible in the sense that it is capable of belief; vi. The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; … 18.In this instance, it is contended by the Applicants that the application was prompted by the contradictory testimony introduced by both PW1 and PW2 during the hearing of the Plaintiff’s case when having earlier disputed selling the suit property land Parcel No. Makueni/Unoa/2982 in her witness statement, PW1 admitted to selling ten plots within the suit property. The inconsistency in the Plaintiff’s testimony was not denied rather played down in her replying affidavit stating that it is not a legal requirement that all the evidence that will be given at the trial must be written down wholly in the witness statement. 19.In his supporting affidavit, the 1st Defendant explained the relevance in the five documents he wished to adduce in his evidence. He stated that the confirmed grant will reveal the size of the portion of land apportioned to him while whereas the sale agreement with Kiswii Kanyele will reveal another portion of land sold to him to ultimately yield parcel No. MAKUENI/UNOA/2983. ELC NO. E031 OF 2022 6|Page

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20.With the introduction of the additional evidence, the Applicants contend that the documents will explain how the ten plots were transferred to the 1 st Defendant during transmission by virtue of the confirmed grant. 21.It is the Applicants’ case that the additional documents could not be procured after reasonable diligence and that the application has been brought in good faith. Seeing that the relevance of the documents to the fair determination of the case has been explained to the satisfaction of the court, the Applicants ought to be granted leave to file the additional evidence. 22.No prejudice will be occasioned to the Plaintiff which cannot be cured by corresponding leave to rebut the additional evidence. Section 146 (4) of the Evidence Act provides as follows: ‘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 reexamination respectively.’ 23.The upshot of the foregoing is that the Applicant has demonstrated merit in the instant application. It is allowed as prayed. Defendants to file additional documents within 7 days. ................................................. HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Muthiani for Plaintiff/Respondent Ms. Mutuku for Ms. Gichuki for Defendants/Applicants Court assistant – Kilonzo & Musyoki ELC NO. E031 OF 2022 7|Page

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