Automated Summary
Key Facts
IKO and JON married on 11 December 2010, later divorced in 2019, and are disputing division of matrimonial property. The plaintiff (IKO) sought to adduce new evidence (bank statements and a letter from National Bank and Co-operative Bank dated January 2025) after the trial closed, claiming the documents were unavailable during the trial due to the banks' system changes. The court allowed the application in the interest of justice but imposed conditions, including a Kshs 30,000 throwaway cost to the defendant (JON).
Issues
The primary issue is whether the Applicant has satisfied the legal criteria for the court to exercise its discretion in re-opening the case to adduce new evidence. The court must assess if the new documents from the National Bank and Co-operative Bank are material and if allowing their introduction would prejudice the Respondent, considering the principles from cases like Raila Odinga v I.E.B.C. and Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd. The Applicant's delay in obtaining the documents and failure to disclose the exact request date to the Bank are also relevant factors in determining the legitimacy of the application.
Holdings
- The court ordered the Applicant to pay the Respondent Kshs.30,000/= in throwaway costs as a condition for allowing the application, and set a mention date for 18th June 2025 to continue proceedings.
- The court allowed the Applicant's application to adduce new evidence (Co-operative Bank statement dated 15th January 2025 and National Bank letter dated 14th January 2025) in the interest of justice, despite concerns about procedural delays and lack of disclosure regarding when the Applicant first requested the documents from the bank.
- The Applicant's case was reopened specifically for the purpose of producing the two newly obtained documents, with corresponding leave granted to the Respondent to file further documents if necessary to address the new evidence.
Remedies
- The Plaintiff's case is to be re-opened only for purposes of having PW1 produce the 2 documents stated in (a) above.
- The Applicant to pay the Respondent Kshs.30,000/= being throwaway costs before the next hearing date, failure to which the order lapses.
- The Defendant is given corresponding leave to file any further documents in relation to the two documents stated in (a) above, if need be.
- Mention on 18th June, 2025.
- The Applicant is allowed to file the Bank statement from Co-operative Bank dated 15th January, 2025 and letter from the National Bank dated 14th January, 2025.
Monetary Damages
30000.00
Legal Principles
- The court considered the legal principles governing the admission of additional evidence, including the criteria for allowing further affidavits and the need to avoid prejudice to the opposing party. Key cases cited included Raila Odinga v I.E.B.C. and Samuel Kiti Lewa v Housing Finance Co., which emphasized that new evidence must not fill gaps in the original case and must be introduced with sufficient time for the opposing party to respond.
- The court exercised discretion to award throwaway costs (Kshs 30,000) to the Respondent, citing the Applicant's failure to disclose the exact date of her request to the Bank. This decision was framed as necessary to balance procedural fairness and the efficient resolution of family disputes under the Civil Procedure Act.
Precedent Name
- Raila Odinga and 5 Others Versus I.E.B.C. and 3 Others
- Wadhwa v Mohamed & 4 others
- Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
Cited Statute
Civil Procedure Act
Judge Name
CJ KENDAGOR
Passage Text
- “The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such prayer for re-opening of the case will be defeated by inordinate and unexplained delay.”
- “In the interest of justice, therefore, this Court is persuaded that this is a proper case where it should exercise its discretion in favour of the Applicant and allow the application. This Court will make the necessary order for costs in order to cure any prejudice that may be occasioned to the Respondent.”
- “The Applicant's conduct offends the cardinal tenets of the overriding objectives under Sections 1A and B of the Civil Procedure Act on the efficient and expeditious manner of finalization of matters.”