https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2026

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC CAUSE NO. E077 OF 2025** **ALFRED M. KALUKOH ……………………………………………………………CLAIMANT** **VS** **MOMBASA CONTINENTAL RESORT LIMITED……………………….RESPONDENT** **RULING** By a notice of Motion Application dated 16th February 2026, the Respondent /Applicant seeks the following orders; 1. THAT this Application be certified as urgent and be heard ex parte in the first instance. 2. THAT this Honourable Court be pleased to grant leave to the Respondent to file and serve a Supplementary list of Documents out of time. 3. THAT the annexed Supplementary list of Documents be deemed as duly filed upon payment of the requisite court fees. 4. THAT this Honourable Court be pleased to grant such further orders and/or directions as may be necessary for the just determination of this matter. 5. THAT the costs of this Application be in the cause. The application is premised on the grounds set out on the face of the application, and those on the supporting affidavit sworn by MICHAEL KAMAU, the Respondent’s General Manager. The Respondent acknowledges that the Claimant's case has already been heard and formally closed by this Honourable Court, and the matter is now scheduled for the hearing of the Respondent's defence case. The Respondent states that subsequent to the close of the Claimant's case, the Respondent identified additional documents which are material, relevant, and necessary for the just and effectual determination of this dispute. It further asserts that the documents sought to be introduced are directly relevant to the Claimant's disciplinary process and termination. It is stated that the omission of the said documents from the initial List of Documents was inadvertent rather than deliberate. These documents are essential for a proper resolution of the disputed issues, especially regarding procedural fairness, disciplinary compliance, and the legality of termination. The Respondent contends that permitting the Application will not cause any prejudice to the Claimant, as the Claimant will be afforded an opportunity to respond to and/or contest the documents during the defence hearing. The Respondent further states that unless the leave sought is granted, the Respondent risks being denied the opportunity to rely on material evidence necessary for the fair determination of the case. The Application has been made in good faith, without unreasonable delay, and in the interest of justice. The Claimant opposes the Respondent’s application on the grounds of opposition dated 23rd February 2026. They are; 1. THAT the Respondent's application is fatally defective, frivolous, and vexatious, an abuse of Court process and deserves to be struck out with costs. The Application violates the provisions of Article 25 (c) and 50 (1) and (2) of the Constitution of Kenya. 2. THAT being the custodian of all employee records, including the claimant herein, the Respondent/Applicant has not disclosed any plausible reason for its failure to file the alleged crucial documents within the prescribed statutory timelines. 3. That the application appears to be an afterthought, as it is based on a response to the issues raised during the hearing of the Claimant's case. Essentially, the Applicant/Respondent has benefited from hearing the Claimant and is now attempting to address any potential loopholes in its case to the disadvantage of the Claimant. 4. THAT the delay is inordinate and the claimant shall be highly prejudiced given the fact that pleadings closed way back on 18/11/2025 in the presence of both parties and the matter was certified ready for hearing. The Claimant was heard on 11/2/2026 and closed his case. 5. That the Applicant has failed to attach the purported intended documents in question for the benefit of the Claimant and the court to be informed of their context, to examine their complexity, significance, and/or the prejudice that they may cause to the Claimant. The alleged documents have consistently been in the possession of the Applicant and cannot be considered new. 6. It is debatable whether the trial will be fair if the Applicant is permitted to submit new evidence, as the Claimant would have no chance to respond to the alleged documents if they become contested. **Analysis and Determination** I have carefully considered the Notice of Motion Application dated 16th February 2026, the grounds set out on the face thereof and in the supporting affidavit of Michael Kamau, the Grounds of Opposition dated 23rd February 2026 filed by the Claimant, and the record of these proceedings as a whole. The singular issue falling for determination is whether, in the circumstances obtaining in this matter, the Applicant has made out a case for the grant of leave to file and serve a Supplementary List of Documents out of time, in circumstances where the Claimant has already testified and formally closed his case. It is now well settled that this Court, in the exercise of its jurisdiction, is enjoined by the overriding objective set out under Sections 1A and 1B of the Civil Procedure Act, as read together with Rule 3 of the Employment and Labour Relations Court (Procedure) Rules, 2024, to facilitate the just, expeditious, proportionate and affordable resolution of the disputes before it. Guided further by Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities, this Court retains a wide discretion to permit the filing of documents, including additional or supplementary documents, at any stage of the proceedings, where the interests of justice so demand. That discretion, however wide, is not unfettered and does not operate uniformly at every stage of a trial. Where, as in the present case, leave is sought to introduce additional documents after the Claimant has already testified and formally closed his case, the equities shift markedly. At that stage of the proceedings, the evidential positions of the parties have crystallized, and the Claimant, having testified and been discharged, no longer enjoys an unqualified opportunity to meet, test or respond to new material in the ordinary course of presenting his case. In such circumstances, this Court can only extend the indulgence sought upon a clear demonstration of very exceptional circumstances justifying a departure from the ordinary sequence and finality of trial. It does not suffice for an applicant merely to assert relevance, materiality or good faith; the applicant must further satisfy the Court why the documents in question could not, with reasonable diligence, have been filed together with the original List of Documents or at any time before the Claimant closed his case, and why the ends of justice would be defeated were the indulgence sought not granted. Applying the foregoing to the facts of this case, the explanation proffered by the Applicant for the omission is that it was “inadvertent rather than deliberate.” This bare assertion, unaccompanied by any particulars of how or why documents touching on the Claimant's own disciplinary process and termination, matters squarely within the Applicant's custody and control as the Claimant's employer, came to be inadvertently omitted from the List of Documents filed at the commencement of these proceedings, falls well short of the exceptional circumstances the law requires. A party who seeks so significant an indulgence, at so late a stage of the proceedings, bears the burden of placing before the Court a cogent and satisfactory explanation; mere assertion of inadvertence, without more, is an explanation available to virtually any litigant in any case and cannot, without more, rise to the exceptional threshold demanded. Of further significance is the timing of the application. It is common ground that pleadings closed on 18th November 2025 and the matter was certified ready for hearing, that the Claimant testified and closed his case on 11th February 2026, and that it was only thereafter, by an application dated 16th February 2026, that the Applicant moved to introduce the documents in question. The close proximity between the closure of the Claimant's case and the filing of this application lends credence to the Claimant's contention that the application is reactive to matters that arose during the hearing of his case, rather than the product of an independent, good faith discovery of previously overlooked material. A litigant ought not to be permitted the advantage of testing the strength or weaknesses of its opponent's case before deciding what evidence to place before the Court, as this would offend the principle of equality of arms and occasion an unfair disadvantage to the Claimant. It is also notable, and telling, that the Applicant has not annexed or exhibited the documents which it seeks leave to file, either to the Claimant or to this Court. Without sight of the actual documents, neither the Claimant nor the Court is placed in a position to interrogate their true nature, relevance, materiality, or the prejudice, if any, that their late introduction would occasion. An application of this nature, seeking so significant an indulgence at so critical a stage of the trial, ought ordinarily to be accompanied by the very documents sought to be introduced, so as to enable the Court to assess the claim of relevance and necessity, rather than accept the same on the Applicant's bare word. While the Applicant contends that no prejudice would be occasioned since the Claimant would be afforded an opportunity to respond to the documents during the defence hearing, this contention does not, in the view of this Court, cure the mischief complained of. The Claimant closed his case on the evidential record as it then stood. To permit new documentary evidence touching on the very heart of the dispute, his disciplinary process and termination, to be introduced after that stage, without the Claimant having had a fair opportunity to address it in the course of presenting his own case, carries a real and material risk of prejudice and sits uneasily with the fair trial guarantees under Article 50(1) of the Constitution. The Court is fortified in this approach by the well settled principle, articulated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, that the discretion to extend an indulgence to a party is not a right and will only be exercised judiciously, and where sufficient reason has been placed before the Court. A party seeking such indulgence must clear the threshold set by principle and precedent. In like manner, courts will not lightly reopen or extend the evidentiary phase of a matter to the detriment of finality and the legitimate expectations of the opposing party, save upon a clear and compelling showing of exceptional circumstances. Having considered the totality of the material placed before it, this Court finds that the Applicant has failed to disclose any exceptional circumstances warranting the grant of leave to file a Supplementary List of Documents at this late stage of the proceedings, after the Claimant had already testified and closed his case. The explanation of inadvertence advanced is unsubstantiated; the timing of the application raises legitimate concern that it is an afterthought occasioned by matters arising during the Claimant's testimony, and the failure to place the documents themselves before the Court renders it impossible to properly weigh their relevance against the prejudice their late introduction would occasion the Claimant. Accordingly, the application lacks merit. **Determination and Final Orders** For the reasons set out above, this Court makes the following final orders: 1. The Notice of Motion Application dated 16th February 2026 be and is hereby found tolack merit and is dismissed in its entirety. 2. The costs of the Application shall be borne by the Applicant/Respondent. 3. The matter shall proceed to hearing of the Respondent's defence case on the dates to begiven by this Honourable Court. It is so ordered. **DATED, SIGNED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE 2026.** **OCHARO KEBIRA** **JUDGE**