KAM Company Limited v Shelter Afrique & Westlands Residential Resort Limited [2015] KEHC 8384 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 49 OF 2005

KAM COMPANY LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

SHELTER AFRIQUE  ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST DEFENDANT

WESTLANDS RESIDENTIAL RESORT LIMITED ::::::::::::::::::::::::::::::::: 2ND DEFENDANT

R U L I N G

The Notice of Motion application before the court is dated 6th December 2014 and filed in court on 6th January 2015 by the Plaintiff.  The application seeks to secure the following orders:-

1. The application be certified urgent and service thereof be dispensed with in the first instance.

2. The Plaintiffs be and are hereby granted leave to file additional list of documents out of time.

3. The attached documents be deemed as properly filed and served upon payment of the court fees.

4. The Plaintiffs be and are hereby granted leave to recall their witness to testify on the additional documents filed and made available after the Plaintiff had closed their case.

5. The Defendants be and are hereby granted corresponding leave to file further documents if need be.

6. Costs of the application be in the cause.

The application is premised on the grounds set out therein, and is supported by the affidavit of Peter Kamau Ikigu sworn on 16th December 2014.

In brief, the Plaintiff’s/Applicant’s case is that the Plaintiffs have closed their case and the 1st Defendant witness is due to be further cross-examined. The Plaintiffs have come across crucial documents relating to the suit property which documents were not available at the time the bundle of documents were filed and by the time the Plaintiff’s witness testified. The documents have been availed by the Ministry of Lands and are crucial in determination of the case.  These documents related to the ownership of the suit premises as at 19. 6.2014. It is absolutely necessary that these documents are placed before the court for a fair and just determination of the issues before the court.  The Plaintiff’s case is that the Defendants will not be prejudiced by the grant of the prayers sought as they will be interested in the contents of the documents, and will have a corresponding opportunity to file their documents in response.

The application is opposed by the 1st Defendant who filed grounds of opposition on 19th March 2015, stating that the documents to be introduced are inadmissible on account of irrelevance, that the application is affected by laches, that the orders sought will prejudice the Defendant, and that the application is misconceived.

I have considered the application and the oral submission made by counsel.  The only issue I raise is whether this court can exercise its discretion to allow the application.

To address the issue, it is now clear that under the law all the parties will be afforded a fair opportunity to access the seat of justice.  A party who has failed to file important documents in support of his case will be allowed to do that upon application if good reasons are provided. It is the Applicant’s case that the documents they seek to produce relate to the ownership of the suit premises as late as at the 19th June 2014.

By that time the Plaintiff had already closed its case.  The Plaintiff now alleges that the said documents, which are attached to his application, are so crucial to its case that it would be severely prejudiced if the application were not allowed.

The main opposition to the application is that the said documents to be admitted are irrelevant to the Plaintiff’s case and shall misled the court, and prejudice the Defendants.  It is not stated how the Defendants would be prejudiced, but the Applicant has stated that the Defendant will be given a chance to respond to the same. In this regard, i do not foresee, any prejudice to be suffered by the Defendant which cannot be remedied by costs.

The other ground, is that the documents are irrelevant to the Plaintiff’s case and will mislead the court.  In my view, if the said document are actually irrelevant to the Plaintiff’s case that will be the Plaintiffs problem.

In any event, the relevance of these documents will be an issue to be determined by the court.  I also do not believe that the court will be misled by the production of those documents.

Arising from the foregoing the Plaintiff’s application under consideration is allowed as prayed with costs to the 1st Defendant.

Orders accordingly.

READ, DELIVERED AND DATED AT NAIROBITHIS 10TH DAY OF NOVEMBER 2015.

E. K. O. OGOLA

JUDGE

PRESENT:

No appearance for thePlaintiff

Thangei holding brief for Nthige  for theDefendant

Teresia – Court Clerk