https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2161

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E309 OF 2024** *(Before Hon. Lady Justice Agnes Kitiku Nzei)* **LILIAN MUGURE MUGO CLAIMANT** *VERSUS* **GIVEPOWER KENYA ..RESPONDENT** **RULING** 1. Trial herein commenced before me on **10th July, 2025** when the Claimant **(CW-1)** testified in chief, and was cross-examined and re-examined. The Claimant’s case was closed, and the Court fixed the matter for defence hearing on 17th February, 2026. 2. When the matter came up for defence hearing on 17th February, 2026, however, the Court was told that the Respondent had filed an application dated 23rd January, 2026, seeking leave to introduce a further list and bundle of documents. In view of the said development, the Court adjourned the scheduled defence hearing and gave the Claimant fourteen (14) days to file and serve response to the said application. The Court also directed both parties to file written submissions on the said application. **The Notice of Motion dated 23rd January, 2026** 1. The application is expressed to be brought under Sections 3(1), (2) & (3) and 12(3)(viii) of the Employment and Labour Relations Court Act and Rules 47 & 68 (1)(g) of the Employment and Labour Relations Court Procedure Rules 2024. The Respondent/Applicant seeks the following Orders:- 1. *An order that the Court be pleased to grant leave to the Respondent to introduce an additional list and bundle of documents dated January 23rd 2026 into evidence.* 2. *An order that the Respondent’s additional list and bundle of documents dated January 23rd 2026, annexed to the application and marked* ***“REA01”*** *be considered duly filed and served upon the Claimant in the suit.* 3. *An order that the Court be pleased to grant any corresponding leave to the Claimant on just considerations.* 4. *An order that costs of the application be in the case.* 2. The application sets out on its face the grounds on which it is brought and is supported by the affidavit of **Renee Everlyne Atieno Owuory** sworn on 23rd January, 2026. It is deponed in the said supporting affidavit, ***inter-alia:-*** 1. *that the deponent was employed by the Respondent on 23rd July, 2023, six months after the Claimant had gained employment with the Respondent as a Trek Coordinator on 9th January, 2023; and may only qualify as a secondary witness to events and circumstances surrounding the Claimant’s recruitment and her first six months in employment with the Respondent.* 2. *that events and circumstances around the Claimant’s recruitment and her first six months in employment with the Respondent are germane to determining the issues in controversy in the claim herein.* 3. *that at the time of filing suit, the documents contained in the Respondent’s additional list and bundle of documents dated January 23rd 2026, which constitute email extracts, were not available in the Claimant’s personnel records or physically available in the Respondent’s other physical personnel records, and consequently could not be accessed by the deponent.* 4. *that unless the Claimant offered false testimony during her cross-examination, she stands to suffer no prejudice if the Respondent’s additional list and bundle of documents dated January 23, 2026 is introduced into evidence.* 3. The application is opposed by the Claimant vide her replying affidavit sworn on 4th March, 2026. It is deponed in the said replying affidavit, ***inter-alia:-*** 1. *that hearing of the suit herein proceeded on 10th July, 2025, with the Claimant’s evidence being taken and her case closed; and that due to time constrains, hearing was adjourned to 17th February, 2026.* 2. *that the suit had been fixed for hearing upon parties confirming compliance with trial directions on 11th February, 2025.* 3. *that the Respondent wants to lead more evidence, not because of any discovery of evidence that could not be availed upon exercise of due diligence, prior to trial, but, in the deponent’s words,* ***“because the Claimant testified to events and circumstances surrounding her recruitment, part of which was not within the deponent’s immediate knowledge and [was] not contemplated at the time of responding to the claim.”*** 4. *that facts relating to the events within six (6) months of the Claimant’s employment were available to the Respondent even prior to the filing of the suit.* 5. *that the Respondent was accorded an opportunity to file its evidence, and that on 10th July, 2025 when the matter was scheduled for hearing, the Respondent’s Advocate indicated that she was ready to proceed with the defence, with the testimony of one witness.* 6. *that the present application is an afterthought, to fill in gaps of the Respondent’s case identified after the Claimant’s testimony.* 7. *that the Claimant stands to be greatly prejudiced because having closed her case, she will not be in a position to call forth additional evidence to counter any that is being presented by the Respondent.* 8. *that the Court should not allow the Respondent to patch up its weak points.* 4. Both parties filed written submissions pursuant to the Court’s directions in that regard. 5. The single issue for determination in the present case is whether the orders sought herein can issue. 6. The Orders sought by the Respondent are **discretionary in nature**. The applicable principle where the Court is called upon to exercise discretion is that the party seeking exercise of such discretion in his favour **must** demonstrate the existence of a sufficient reason and/or cause why the discretion should be exercised. It is the sufficient reason, where demonstrated, which invokes the Court’s discretion. A discretionary order is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court **(Fahim Yasin Twaha – vs – Timamy Issa Abdalla & 2 Others [2015] eKLR)**. 7. When the suit came up for hearing on 10th July, 2025, Counsel for the Respondent told the Court that she was ready to proceed with hearing of the suit herein, and proceeded to cross-examine the Claimant, and exhaustively so. The Claimant was then re-examined, and her case was closed. Had there been sufficient time on the aforesaid date, defence case would have proceeded. According to the Court’s record, hearing adjourned at 1.00 p.m and defence hearing was fixed for 17th February, 2026. The present application was filed on 23rd January, 2026. 8. No valid and/or sufficient reason has been advanced as to why the alleged evidential documents sought to be introduced after closure of the Claimant’s case were not introduced/filed either before commencement of trial herein or at least before closure of the Claimant’s case. It is clear from the application herein and the affidavit sworn in support thereof that the Respondent decided to seek the orders now being sought **after** hearing the Claimant’s evidence. 9. I rendered myself as follows in the case of **Confas Maranga Ntabo – vs – Mwalimu National Society Limited [2026] eKLR:-** **“8. As already stated in this Ruling, the Claimant testified in this matter and was exhaustively cross-examined by Counsel for the Respondent. The Claimant’s Counsel then re-examined the Claimant and closed the Claimant’s case. Allowing the Respondent to file evidential documents which were not on record when the Claimant testified, both in chief and under cross-examination, and allowing it to produce those documents in evidence after closure of the Claimant’s case, will be highly prejudicial to the Claimant. The Claimant will not have an opportunity to testify on those documents.** **9. Recalling the Claimant to testify on the documents sought to be introduced as the Respondent appears to suggest will not cure the prejudice, as the defence has already heard the Claimant’s case and cross-examined him, and further heard the Claimant’s evidence on re-examination. Allowing the present application will be tantamount to giving the Respondent an unfair advantage over the Claimant, which this Court will not do.** **10. Parties herein are, and have all along been ably represented by Counsel. It is quite amazing that Counsel for the Respondent/Applicant did not notice the necessity to file further evidential documents while preparing for trial on or before 14th October, 2025. Did Counsel note the necessity to file further evidential documents while cross-examining the Claimant? Why did Counsel wait until conclusion and closure of the Claimant’s case? The Respondent has not given any valid reason for failing to file its alleged crucial evidential documents at least before conclusion and closure of the Claimant’s case. This Court’s discretion cannot be exercised in favour of a party which or who fails to give reasons and/or congent reasons as to why the discretion should be exercised in his favour. It is not enough to plead inadvertence on the part of Counsel.** **11. The Respondent has not told the Court that the documents sought to be introduced at this stage had, for some good and valid reasons, not been forwarded by it to its Counsel for filing in Court, either before the taking of pre-trial directions or before commencement of trial.”** 1. This Court has not been referred to any law pursuant to which its discretion can be exercised in favour of the Respondent/Applicant as sought. **Rule 38 of the Employment and Labour Relations Court (Procedure) Rules 2024** provides as follows:- ***“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. It is clear from the foregoing Rule that supplementary bundles of documents **may** be filed after closure of pleadings, **but only with the Court’s leave**. There is no indication in the said Rule that the Court’s discretion in this regard can be exercised after parties to a suit, or either of them, **has testified and closed their case**. Orders sought by the Respondent/Applicant can simply **not** issue. 2. In sum, and having considered written submissions field on behalf of both parties herein, I make a finding that the Notice of Motion dated 23rd January, 2026 is devoid of merit. The same is hereby dismissed with costs. 3. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS** **21ST DAY OF JULY 2026** **AGNES KITIKU NZEI** **JUDGE** **ORDER** This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. **AGNES KITIKU NZEI** **JUDGE** Appearance: Miss Mumbi for the Claimant Mr. Omondi for the Respondent