https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2421

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT IN NAIROBI PETITION NO. E 106 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION KELVIN MBURU KAMAU.......................................................................................... PETITIONER -VERSUS- WELLAN TRAVELS LIMITED...................................................................................RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant filed a petition dated 18th March 2026 against the respondent. The respondent filed a response. Subsequently, the applicant filed an application by way of notice of motion dated 10th June 2026 brought under Article 50 of the Constitution, section 3A of the Civil Procedure Act, Rule 19 of Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of law) seeking for the following order- 2. THAT the Petitioner be granted leave to file the counsellor’s report dated 10 th June 2026 out of time. Grounds of the application dated 10th June 2026 1. The Petition was filed on 18th March 2026 and served upon the Respondent on the 2nd April 2026. The Respondent consequently filed its response on 22nd May 2026 being about 2 months late from the 14-day timeline provided under rule 15 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 2. At the filing of the Petition, the Petitioner’s appointed counselling psychologist was still finalizing counselling sessions and compilation of the report hence the non-inclusion in the List and Bundle of Documents. 3. The report is relevant to proving the psychological impact of the trafficking incident and the violation of the constitutional right to human dignity, and the right not to be treated in a cruel, inhumane or degrading manner. The inclusion of the report is thus necessary and crucial to enable this Court to reach a proper and just determination. 4. . The report does not alter the factual matrix or cause of action, consequently, the Respondent will not be prejudiced or inconvenienced by the need to file a further response. The report is not also meant to patch up weak points. 5. The exclusion of the report will be an affront to the Petitioner’s constitutional right to fair trial, which is non-derogable as held by the Supreme Court in Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 [2018] KESC 62 (KLR). 6. The instant application has not been filed unduly late. Further, the Respondent has been previously accommodated by this Court by being allowed to file its response about 2 months late as stated in ground 1. 7. The applicant filed an affidavit dated 10th June 2026 in support of the application and annexed the counselling report dated 10th June 2026 marked as ‘KMK2’. Response to the application 1. The application was opposed by the respondent vide affidavit of Maxwell Magenyere dated 22nd June 2026 as follows- THAT the Petitioner filed his Petition on 18th March, 2026, to which the Respondent duly filed his Response on 22nd May, 2026. The Petitioner thereafter exercised his right of reply by filing a supplementary affidavit dated 4th June, 2026, thereby placing before the court the issues relevant to be considered in his case. THAT at no point in the Petition, Supporting Affidavit, or Supplementary Affidavit did the Petitioner make any reference whatsoever to the alleged counselling report, counselling sessions, or any claim arising therefrom. THAT the Petitioner's application to introduce the counselling report dated 10th June, 2026, is a bad-faith procedural maneuver designed to conduct a trial by ambush after close of pleadings. THAT a critical examination of the proposed Counseling report further reveals that the Petitioner commenced counselling sessions on 25th March, 2026 exactly seven (7) days after the petition was filed in court. The assertions by the Petitioner that the counselor was still finalizing the reports are blatant falsehood as at the point of filing the sessions had not even started. THAT the issues for determination in this matter have long been crystallized by the pleadings and affidavits filed by the parties. The Petitioner is now seeking, through the present application, to introduce an entirely new report and factual matters that were never pleaded, disclosed, or relied upon in any of his earlier pleadings. THAT the proposed report introduces new evidentiary matters not previously pleaded or supported by evidence and consequently prejudicial to the Respondent considering that the pleadings have already closed but merely a means to patch up weak points. THAT the Respondent will suffer extreme, irreversible procedural prejudice if this report is admitted, as the Respondent has already tailored its defense entirely around the facts and documents originally pleaded and served by the Petitioner. THAT the Petitioner's reliance on the leave previously granted to the Respondent to file its response out of time is completely misplaced. The two procedural circumstances are distinct, independent, and cannot serve as a precedent for admitting fresh evidence after close of pleadings. THAT the application is an attempt to strengthen and patch up deficiencies in the Petitioner's case after the Respondent has already filed its response. THAT it is in the interests of justice that the application should not be allowed as it's devoid of merit and is an abuse of the court process. 2. The application was canvassed by way of written submissions. DECISION Whether the application was merited. 1. The applicant has only a single prayer namely- THAT the Petitioner be granted leave to file the counsellor’s report dated 10th June 2026 out of time. 2. The Employment and Labour Relations Court (procedural) Rules,2024, Rule 10 provides as follows- ‘10. Institution of petition and judicial review proceedings (1) Any person who wishes to institute a petition shall do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules.’ The court will refer to the rules as ‘The Mutunga Rules'. Rule 19 provides as follows**-‘**19. Formal applications A formal application under these rules shall be by Notice of Motion set out in Form D in the Schedule and may be supported by an affidavit’’ ### The applicant seeks an extension of time to file a new document after close of the pleadings. The Mutunga Rules provide for extension of time under Rule 30 as follows: '**30. Extension of time** The Court may extend time limited by these rules, or by any decision of the Court.’’ ### ### The Employment and Labour Relations Court (procedural) Rules, 2024 provide: ’**38. Additional documents** Where a party, intends to rely on a document that has not been filed as at the time of filing pleadings, the party shall make sufficient copies of each document for the Court file and serve the other party with a copy at least fourteen days before the case is set down for hearing or such shorter, period as the Court may, order: Provided that after the close of pleadings, the Court may allow the filing of a supplementary bundle of documents.’ 1. The applicant stated that after filing the petition, he appointed a counselling psychologist who was still finalizing the counselling sessions, thus failing to file the document with the list of documents. The respondent opposed the application on basis that the Petitioner exercised his right of reply by filing a supplementary affidavit dated 4th June, 2026, thereby placing before the court the issues relevant to be considered in his case. That at no point in the Petition, Supporting Affidavit, or Supplementary Affidavit did the Petitioner make any reference whatsoever to the alleged counselling report, counselling sessions, or any claim arising therefrom. That the Petitioner's application to introduce the counselling report dated 10th June, 2026, is a bad-faith procedural maneuver designed to conduct a trial by ambush after close of pleadings. THAT a critical examination of the proposed Counseling report further reveals that the Petitioner commenced counselling sessions on 25th March, 2026 exactly seven (7) days after the petition was filed in court. The assertions by the Petitioner that the counselor was still finalizing the reports are blatant falsehood as at the point of filing the sessions had not even started. That the issues for determination in this matter have long been crystallized by the pleadings and affidavits filed by the parties. The Petitioner is now seeking, through the present application, to introduce an entirely new report and factual matters that were never pleaded, disclosed, or relied upon in any of his earlier pleadings. That the proposed report introduces new evidentiary matters not previously pleaded or supported by evidence and consequently prejudicial to the Respondent considering that the pleadings have already closed but merely a means to patch up weak points. That the Respondent will suffer extreme, irreversible procedural prejudice if this report is admitted, as the Respondent has already tailored its defense entirely around the facts and documents originally pleaded and served by the Petitioner. The Respondent stated that the report was made to patch weak points of the case. 2. The applicant submitted that in determining the application, this Court needs to determine whether:- (a) The additional evidence is relevant and necessary; (b) It alters the factual matrix in the pleadings, or is intended to fill gaps/lacunae; and (c) The Respondent will be prejudiced. We will proceed to address the 3 issues in turn. (a) The additional evidence is relevant and necessary. 3. The applicant submitted that the report is relevant and necessary to prove the psychological impact of the trafficking incident and the violation of the constitutional right to human dignity, and the right not to be treated in a cruel, inhumane or degrading manner. The applicant relied on the decision in Tibi & 6 others v Kenya Power and Lighting Company Limited (Civil Suit 104 of 2013) and stated that the court affirmed that courts should strive to ensure that all relevant evidence is availed to ensure that the court reaches a just determination. It stated as follows in paragraph 17:- 1 “…The Court is guided by the principle that litigation should, as far as possible, be determined on the basis of all relevant material placed before it, rather than on technical omissions…” Equally this Court in Mulu v Total Kenya PLC (Cause E629 of 2021) [2025] KEELRC 22 (KLR) (in paragraph 21) also held that ‘relevance’ of the additional evidence is key. (b) The report does not alter the factual matrix in the pleadings, nor is it intended to fill gaps/lacunae? That, as stated in paragraph 5 of the Petitioner’s Supplementary Affidavit, the report does not raise any new issues since the facts have already crystallized in the pleadings and the report just shows the adverse effects of the trafficking incident— the Court will thus only rely on the factual rendition as set out in the pleadings. The report will only guide in ascertaining the extent of the adverse effect caused by the trafficking, and the quantum of damages to be awarded in the event of success. Further, the report does not seek to fill gaps/lacunae since the Petition already raises various constitutional violations such as inter alia right to human dignity. It also raises the right not to be treated or punished in a cruel, inhuman or degrading manner, which can be either physical or psychological. The report thus buttresses/proves the psychological aspects of the cruel, inhumane or degrading manner, and other constitutional violations including the right to human dignity. (c) The Respondent will not be prejudiced, further any prejudice can be cured by a response Since as argued in (b), the report has not changed the factual matrix and it does not seek to fill gaps, the Respondent will not be prejudiced. The Court in Mulwa & another v Muluki (Civil Appeal E144 of 2021) appreciated that little prejudice is suffered when the trial has not started. 10. In addition, this Court (ELRC) in Mulu case (supra) and the High Court in Tibi case (supra) held that such prejudice can be cured by filing a response or cross examining the authors of the new evidence. Mulu case allowed the Respondent to file a response, while Tibi resorted to cross-examination of the author by concluding that “ …The Court finds that in the circumstances of this case, the appropriate approach would be to allow the application, since the Respondent, if they choose to do so, will still have the opportunity to cross-examine the Applicants on the new evidence…” That Supreme Court in Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 [2018] KESC 62 (KLR) held that the question of additional evidence is a fair trial issue, therefore non-derogable as provided under article 25 (c) of the Constitution. 4. Conversely, the respondent submitted that Rule 38 of the Employment and Labour Relations Court (Procedure) Rules, 2024 grants this Honourable Court the discretion to admit additional documents after close of pleadings. However, such discretion must be exercised judiciously and not to enable a litigant to reconstruct a case after close of pleadings. The Petitioner's application is founded on the assertion that the Counselor's report merely demonstrates psychological effects of the alleged trafficking and does not alter the factual matrix of the case which is not true. 8. 9. The Petitioner's, supporting affidavit and supplementary affidavit before this honorable court never pleaded nor mentioned any diagnosis of psychological injury, counselling, emotional trauma requiring treatment. Notably, from the said report the Petitioner commenced counseling exactly 7 days after filing of the Petition. The proposed report introduces expert evidence alleging psychological injury, emotional suffering and mental injury which were never part of the petition thus never responded to. The Supreme Court in Mahamud Mohamed v Ahmed Abdullahi Mohamad & 3 Others held that in admitting additional evidence the court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful. That the present application falls squarely within the mischief that the Supreme Court sought to guard against. The counsellor's report did not exist when the Petition was filed. It was generated only after the commencement of these proceedings and after the close of pleadings. The Petitioner therefore seeks not merely to include an omitted document but to introduce evidence that previously never existed after close of pleadings. This goes beyond explaining existing facts; it seeks to establish facts that were never previously pleaded or supported by evidence. The Court of Appeal in Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] KECA 215 (KLR) reaffirmed the cardinal principle that parties are bound by their pleadings. Where it held that issues for determination flow from the pleadings, and a court should not determine matters that have not been pleaded. Therefore, by introducing expert evidence on psychological injury that was never pleaded, the Petitioner seeks to expand the scope of the dispute beyond the issues disclosed in the pleadings and denying the Respondent a fair chance in responding to those issues. Further, the Respondent stands to suffer substantial prejudice if the report is admitted. The Petitioner's contention that any prejudice can be cured through cross-examination is misconceived. Prejudice is not limited to the inability to test evidence through cross-examination. The Respondent prepared its defense based on the pleadings and evidence filed by the Petitioner. Consequently, admitting the report at this late stage would unfairly deprive the Respondent of the opportunity to file a response to the new evidence, seek appropriate expert opinion, or otherwise address the new allegations introduced by the report. That the Petitioner's reliance on the leave previously granted to the Respondent to file its response out of time is wholly misplaced. The two procedural circumstances are distinct, independent, and incapable of serving as a precedent for the admission of fresh evidence after the close of pleadings. The leave granted to the Respondent merely regularized the filing of its response to the Petition and did not introduce new issues or evidence outside the existing pleadings. In contrast, the present application seeks to introduce an entirely new expert report that was neither pleaded nor disclosed during the pleadings stage, thereby fundamentally altering the Petitioner's case and occasioning prejudice to the Respondent. 5. The court finds that the Mutunga rules allow for extension of time. Further, Rule 38 of the ELRC rules allows for exercise of court discretion to grant leave for filing of documents after closure of pleadings as follows- ‘**38. Additional documents** Where a party, intends to rely on a document that has not been filed as at the time of filing pleadings, the party shall make sufficient copies of each document for the Court file and serve the other party with a copy at least fourteen days before the case is set down for hearing or such shorter, period as the Court may, order: Provided that after the close of pleadings, the Court may allow the filing of a supplementary bundle of documents.’’ 1. The court having perused the authorities relied by the parties finds the issue of relevancy of the documents sought to be produced after closure of pleadings is core to decision making. In decision cited by the respondent in The Supreme Court in Mahamud Mohamed v Ahmed Abdullahi Mohamad & 3 Others it was held that in admitting additional evidence the court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful. The court, on perusal of the petition, finds that the applicant alleged violation of rights of dignity, not to be created with cruelty and fair labour practice. The applicant submitted the document was not to falter the pleaded case but to support the claim of violation of the right to dignity. The Respondent’s concerns emerging from its submissions are that the Respondent stands to suffer substantial prejudice if the report is admitted. That the Petitioner's contention that any prejudice can be cured through cross-examination is misconceived. Prejudice is not limited to the inability to test evidence through cross-examination. The Respondent prepared its defense based on the pleadings and evidence filed by the Petitioner. Consequently, admitting the report at this late stage would unfairly deprive the Respondent of the opportunity to file a response to the new evidence, seek appropriate expert opinion, or otherwise address the new allegations introduced by the report. 2. The court finds the report to be relevant in the determination of the petition. The prejudice to the respondent that the admission of the report may cause is remediable by allowing the respondent to file their own expert opinion if they so wish and by allowing cross-examination of the expert on their report. The court finds that the right to a fair hearing will be met by granting leave to the applicant to file the report out of time and, at the same time, extending leave to the respondent to file their own expert report and granting the right to cross-examine the author of the report. 3. The application is allowed. Leave is granted to the applicant to file the counsellor report dated 10th June 2026 out of time within 7 days and serve. The respondent is granted leave to file a separate expert opinion, if they so wish, within 30 days of this decision. The counselling report is to be produced at the hearing by the author for any cross-examination by the respondent, if they so wish. 4. Mention on the 22nd September 2026 for pretrial directions. 5. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner/Applicant: Yegon and Kijala Respondent: Ms Oseko