Butali Sugar Mills Limited v West Kenya Sugar Co. Ltd & another [2022] KEHC 10086 (KLR)

Butali Sugar Mills Limited v West Kenya Sugar Co. Ltd & another (Civil Suit 168 of 2007) [2022] KEHC 10086 (KLR) (Commercial and Tax) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10086 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 168 of 2007

A Mabeya, J

July 15, 2022

Between

Butali Sugar Mills Limited

Plaintiff

and

West Kenya Sugar Co. Ltd

1st Defendant

Kenya Sugar Board

2nd Defendant

Ruling

1. This is a 2007 matter. It has been in our system for over 15 years now. The trial of the main case commenced two months ago. The plaintiff called 2 witnesses and closed its case on 6/7/2022.

2. The 1st defendant opened its defence on 6/7/2022 and its only witness D1W1 is still on the dock. He finished his evidence in Chief and was cross examined by Mr. James Ochieng Oduor (SC), Learned Counsel for the plaintiff on 7/7/2022.

3. When the matter resumed on 14/7/2022 for further cross examination, Mr. Kibe, Learned Counsel for the 1st defendant applied to have the 1st defendants 2nd Supplementary List of Documents be admitted. He submitted that the document sought to be introduced was necessary and would complement the document that appears at pages 18 to 112 of PExh1 the Year Book of Sugar Statistics. That no prejudice will be suffered if the document is admitted as sought.

4. Mr. Oduor (SC) opposed the application. He submitted that the application was being made too late in the day. That the 1st defendant knew of the existence of this document since 16/5/2013 when the plaintiff filed its PExh1. That the said exhibit should have been rebutted before the plaintiff’s witnesses testified. To him, the document was completely different from PExh1 and is irrelevant.

5. Mr Kemboy, Learned Counsel for the 2nd Defendant decided not to take sides.

6. I have considered the submissions of Learned Counsel. This is an oral application to adduce further evidence by way of a 2nd Supplementary Bundle of documents. It is alleged that it is related to an already produced document being PExh 1 pages 18 to 112. That it will complement the same and enable the Court see the whole picture regarding the availability of care in the period in question.

7. In Humphrey Njuru Karanja v John Mwangi Kin’gori & another [2013] eKLR, the court allowed an application for additional evidence, on the basis of Article 159 (2) (d) of the Constitution and sections 1A and 1B of the Civil Procedure Act which provide that courts ought to dispense substantive justice and ensure that there is just, expeditious, proportionate and affordable resolution of civil disputes.

8. The court further observed:-“This court cannot therefore prevent the 1st Defendant from stating its case, as it is his right to seek substantive justice from this court. The only limitation to the exercise of this right would be if there was prejudice to be caused to the Plaintiff in allowing the 1st Defendant to file a further witness statement and further documents.”

9. In Gatheru Gathemia t/a Gatheru Gathemia & Co. Advocates vs Jane Gathoni Munene HCC No. 133 of 2015 (UR), the Court observed: -“……I am in agreement that a party should not be allowed to litigate in instalments. That he should not be allowed to patch up his case when he realizes that parts of his case have been shredded in cross-examination. However, a Court of law will allow and accommodate a party if the other party will not suffer prejudice or the prejudice to be suffered can be atoned by an award for costs.In the present case, although the plaintiff has already concluded his testimony, he is still on the dock. The defence will have an opportunity still to test his credibility on the evidence sought to be introduced. However, it would have been different had the plaintiff already closed his case.Since the defendants have not demonstrated the prejudice that they would suffer as they will have a corresponding right to respond to the further evidence adduced, the Court looks at the application favourably.”

10. In the present case, the document has been in existence since 2010-2011. The 1st defendant knew of the PExh1 pages 18-112 since 16/5/2013 when it was filed. The plaintiff’s witnesses were cross examined at length on that document. Nothing was mentioned about the document sought to be introduced. The plaintiff has had its witnesses testify and has retired them. It has since closed its case. It will have no opportunity to say anything about the new evidence.

11. In my view, it will be highly prejudicial to the plaintiff if the document is introduced. It would be admitting the same without giving the plaintiff an opportunity to test the same by adducing evidence against it.

12. In view of the foregoing, I am satisfied that the application is without merit. The same is hereby dismissed and the document entituled 1st Defendant’s Second Supplementary List of Documents dated 13/7/2022 is hereby struck out and expunged from the record. Costs in the cause.It is so ordered.

DATED AND DELIVERED NAIROBI THIS 15TH DAY OF JULY, 2022A. MABEYA, FCIArbJUDGE