Kiprono v Vision Fund Kenya (Civil Case E2041 of 2026) [2026] KEMC 818 (KLR) (27 August 2026) (Ruling)

Kiprono v Vision Fund Kenya (Civil Case E2041 of 2026) [2026] KEMC 818 (KLR) (27 August 2026) (Ruling) Neutral citation: [2026] KEMC 818 (KLR) Republic of Kenya In the Eldoret Law Courts Civil Case E2041 of 2026 ME Aligula, RM August 27, 2026 Between Elisha Kiprono Applicant and Vision Fund Kenya Respondent Ruling 1.The ruling herein is in respect of the Notice of Motion dated 18th August, 2026, filed under certificate of urgency. The Applicant seeks leave to file a supplementary affidavit in relation to the Notice of Motion dated 4th August, 2026. The application is supported by the grounds set out on the face thereof and the supporting affidavit sworn by Mr. Elisha Kiprono. The applicant deposes that he filed the application dated 4th August, 2026 seeking, inter alia, orders for contempt of court arising from alleged disobedience of orders issued by this court. 2.It is deposed that on 12th August, 2026, when the matter came up for inter- partes hearing, the respondent served the applicant with its response only a few minutes before the matter was called out. The court thereafter directed that the application be canvassed by way of written submissions, with the parties being granted seven (7) days within which to file their respective submissions. The Applicant further deposes that while preparing the submissions and upon considering the respondent's response, he came across information which was not previously within his knowledge and which, in his view, was material to the determination of the substantive application. 3.The applicant states that he subsequently confirmed that the respondent had given instructions to Timpech Auctioneers, through Timothy Wanjala, who had obtained orders in Eldoret MCCC MISC E119 of 2026 for the attachment and/or repossession of livestock. The applicant contends that the documents sought to be introduced through the supplementary affidavit are material to the substantive application, particularly because the respondent had denied having instructed an auctioneer to execute against the applicant. It is the applicant’s case that no prejudice will be occasioned to the respondent if leave is granted since the respondent will have an opportunity to respond to the supplementary affidavit and address the matters raised therein in its submissions. 4.The application is opposed by the respondent through grounds of opposition dated 24th August, 2026. The respondent contends that the application is misconceived, incompetent and legally untenable to the extent that it seeks to introduce new evidence and/or material facts outside the pleadings and affidavits already filed in the matter. It is its position that pleadings constitute the foundation and framework of the respective cases of the parties and that the applicant is bound by the case pleaded. The respondent argues that the applicant cannot, through a supplementary affidavit, introduce new issues which were not contained in the pleadings and affidavits already filed. The respondent relies on Order 2 Rules 3 and 4 of the Civil Procedure Rules, 2010, and contends that a party is required to plead the material facts upon which its case is founded and cannot reserve material facts for introduction at a later stage through a supplementary affidavit. 5.It is further contended that the proposed introduction of new evidence at this late stage would fundamentally alter the issues for determination and occasion substantial prejudice. It is argued that the respondent would be deprived of a fair and reasonable opportunity to investigate the new allegations, obtain responsive evidence and, where necessary, amend its pleadings. The respondent therefore maintains that the applicant has not demonstrated any sufficient or satisfactory reason why the proposed evidence was not pleaded, disclosed or filed at the appropriate stage and urges the court to dismiss the application. 6.The application was canvassed orally. Learned counsel for the applicant, Mr. Warigi, submitted that the purpose of filing the supplementary affidavit was to place before the court documents which came to the applicant's attention after the respondent’s response had been served. Counsel submitted that when the parties appeared before court on 12th August, 2026, the respondent had served its response only about ten minutes before the matter was called out. Directions were thereafter issued for the substantive application to be canvassed by way of written submissions. Counsel submitted that the applicant had not, at that time, had sufficient opportunity to consider the replying affidavit. He argued that the respondent would suffer no prejudice if leave was granted, particularly because the respondent would be afforded an opportunity to respond to the supplementary affidavit in their submissions. 7.Counsel further submitted that the respondent had, at paragraph 7 of its response to the application dated 4th August, 2026, denied giving instructions to any auctioneer. It was submitted that the Applicant therefore sought to introduce the order and related documentation concerning the attachment of the livestock only for purposes of responding to that denial. He explained that it was the respondent's denial that prompted his client to write to the OCS, Kipkaren Police Station, seeking clarification as to whether there were orders authorizing the execution. Counsel submitted that during the alleged auction no order had been shown to his client and that, following the response from the OCS, the applicant obtained documentation relating to the proclamation and the orders. Counsel maintained that the documents were not in the applicant's possession when the substantive application was filed and that the applicant was therefore not deliberately withholding them from the court. 8.On his part, learned counsel for the Respondent, Mr. Mukonyi, submitted that a casual reading of the application and the supporting affidavit demonstrated that the applicant was seeking to introduce new facts and evidence through the supplementary affidavit. Counsel submitted that the order sought to be introduced had nothing to do with the applicant since the applicant was not listed therein. He argued that allowing the supplementary affidavit would amount to introducing new evidence to the prejudice of his client. He further submitted that proceedings on the substantive application were akin to a hearing where parties are expected to present their evidence, and that a supplementary affidavit at that stage would be akin to allowing the applicant to introduce further evidence without affording the respondent a corresponding opportunity to respond. Counsel argued that the respondent would be prejudiced because its replying affidavit had already addressed the applicant's allegations, including the assertion that the respondent had not executed against the applicant. 9.In rejoinder, Mr. Warigi submitted that the respondent itself had stated that the applicant was not its client and that this was the reason counsel for the respondent argued that the applicant was not named in the documents annexed to the supporting affidavit. Counsel maintained that the applicant only sought to place the order before the court so that the court could determine whether the respondent's denial was supported by the documentary evidence. Analysis and Determination 10.I have considered the Notice of Motion dated 18th August, 2026, the supporting affidavit, the grounds of opposition dated 24th August, 2026 and the respective oral submissions by learned counsel. The issue for determination is:a.whether the applicant has satisfied the court that sufficient grounds exist for leave to file a supplementary affidavit. 11.The filing of a supplementary affidavit is not an automatic right. It is a matter within the discretion of the court, which discretion must be exercised judicially and on the basis of the circumstances of each case. The purpose of a supplementary affidavit is generally to enable a party to respond to matters raised by the opposing party or to place before the court material which could not reasonably have been placed before it earlier. It should not be used as a means of introducing an entirely new case, fundamentally altering the nature of the proceedings or circumventing the applicable rules of procedure. 12.The respondent has correctly submitted that parties are bound by their pleadings. The rules relating to pleadings serve the important purpose of informing the opposing party of the case that it is required to meet and ensuring that litigation is conducted fairly and within defined parameters. Order 2 Rule 3 of the Civil Procedure Rules requires a party to plead the material facts upon which it relies for its claim or defence. Similarly, Order 2 Rule 4 addresses matters which may take the opposing party by surprise or raise issues of fact not arising from the preceding pleadings. However, the present application does not seek to amend the pleadings or introduce new evidence as per the applicant’s submissions. The immediate question is whether the applicant should be permitted to place before the court additional documentary material which he says came to his knowledge after the respondent filed its response. 13.It is material that the substantive application concerns alleged contempt of court and that the applicant's case is substantially dependent upon establishing the respondent's alleged conduct in relation to the orders of the court. The respondent, in answer to those allegations, denied having instructed an auctioneer to execute against the applicant. The applicant now seeks to place before the court documents which, according to him, demonstrate that the respondent had in fact given instructions to an auctioneer. 14.In my view, whether the documents ultimately establish the allegation made by the applicant is not a question to be determined at this interlocutory stage. The question is whether the applicant has given a satisfactory explanation for not having placed the documents before the court earlier and whether their admission would occasion prejudice that cannot adequately be addressed. The applicant has explained that the respondent's response was served only shortly before the inter partes hearing on 12th August, 2026. Indeed, the said replying affidavit sworn on 12th August 2026, on was filed on 12th August, 2026 at 8:41:39, minutes before the court session, counsel confirmed having served that very morning. The applicant further explains that it was upon considering the respondent's denial and conducting inquiries with the OCS, Kipkaren Police Station, that he obtained the documents now sought to be introduced. The respondent has not demonstrated, at this stage, that the applicant was in possession of the documents when the substantive application was filed and deliberately chose not to disclose them. On the contrary, the applicant's explanation is that the documents became available to him subsequently. 15.I also take into account the nature of the documents sought to be introduced. They are said to comprise an order issued in Eldoret MCCC MISC E119 of 2026 and documentation relating to the proclamation and execution against the livestock. The respondent argues that the order does not name the applicant. That argument may ultimately have considerable bearing on the merits of the substantive application. However, whether the applicant is listed in the order, and what legal significance that omission has, are matters that should properly be considered when determining the substantive application. At this stage, the court should be slow to determine the evidential value of the documents before granting leave to file them. To do so would effectively determine part of the substantive application without hearing the parties on the full evidentiary record. 16.The court must nevertheless ensure that the respondent is not prejudiced. The respondent argues that it will not have an opportunity to answer the new matters. I do not find that argument persuasive in the circumstances of this case because any prejudice can adequately be cured by granting the respondent the opportunity to submit on the said issue it its submissions. The court is further guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which requires the court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Article 159(2)(d) of the Constitution further requires the court, in administering justice, to do so without undue regard to procedural technicalities. This provision does not mean that procedural rules should be disregarded. Rather, it requires the court to administer those rules in a manner that advances substantive justice while safeguarding the rights of all parties. I am therefore satisfied that the applicant has provided a reasonable explanation for the timing of the application. I am also satisfied that the respondent can be adequately protected from prejudice by being granted an opportunity to submit on the same. 17.It follows that the court will exercise its discretion in favour of allowing the application. This, however, is not an endorsement of the truth or admissibility of the matters contained in the proposed supplementary affidavit. The evidentiary weight and relevance of the documents, including the order allegedly issued in Eldoret MCCC MISC E119 of 2026, shall be determined when the substantive application dated 4th August, 2026 is heard. 18.Accordingly, the Notice of Motion dated 18th August, 2026 is hereby allowed on the following terms:a.The Applicant is granted leave to file and serve a supplementary affidavit in support of the Notice of Motion dated 4th August, 2026 together with its submission within 7 days and the respondent to file its submissions within 7 days upon service by the applicant. Ruling date for the application dated 4th August, 2026 to be maintained as previously slated for 25th September, 2026.b.Costs of the Notice of Motion dated 18th August, 2026 shall be in the cause.Parties are granted leave to appeal. RULING SIGNED, DATED AND DELIVERED ELECTRONICALLY AT ELDORET THIS 27TH DAY OF AUGUST 2026.M.E ALIGULA- RMIn the presence of C/A: Mr Lepatoiye.