https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1971

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E077 OF 2025** JAMES ANG'AWA OKEYO....................................…………....**CLAIMANT** **VERSUS** GREEN WELLS ENERGIES LIMITED…………..…….......**RESPONDENT** **RULING** 1. The Claimant moved the Court by a Notice of Motion dated 9th June 2026 seeking leave to file and serve a supplementary affidavit in response to the Respondent's reopened Defence and Counterclaim and the second witness statement of Mr. Michael Abong'o. He also seeks directions on the conduct of the hearing scheduled for 14th July 2026, particularly regarding the order of witness testimony, the scope and manner of his cross-examination, and the filing and exchange of any further responses. In addition, he seeks costs of the application and such further orders as the Court may deem fit. The application is premised on the grounds set out on its face and is supported by the Claimant's affidavit. The Claimant avers that following the Court's Ruling reopening the Respondent's Defence and Counterclaim, the Respondent sought to rely on a second witness statement by its ICT Manager containing fresh allegations that the company-issued HP Envy laptop returned by him had been altered and was defective. He contends that these allegations have been raised for the first time and that fairness demands that he be afforded an opportunity to respond before the hearing proceeds. The Claimant maintains that the allegations arise from a conflation of two separate laptops, namely his personal HP ProBook and the Respondent's HP Envy laptop. He explains that his personal HP ProBook had crashed and underwent recovery attempts while in the custody of the Respondent's ICT Manager, whereas the company-issued HP Envy laptop was returned intact and in proper working condition. According to the Claimant, all discussions relating to replacement of storage devices, BitLocker encryption and recovery of data concerned his personal ProBook and not the Respondent's laptop. The Claimant further depones that he initiated the process of returning the HP Envy laptop through the Respondent's official clearance procedure and requested the ICT department to supervise the migration of data and dissociation of the device from his BitLocker account before handover. He states that when he returned the laptop on 20th January 2026, the Respondent's ICT Manager inspected it, powered it on and confirmed that it was in proper working condition before taking custody of it on behalf of the Respondent. According to the Claimant, no complaint concerning any alteration, reduction in storage capacity or missing component was raised during or immediately after the handover. 2. The Claimant further avers that the allegation that the laptop's storage capacity had been reduced from 1Terabyte to 512 Gigabytes only emerged after the Respondent had taken possession of the device and after its advocates had allegedly advised the ICT Manager on the aspects of the laptop to inspect. He contends that the laptop has remained in the Respondent's exclusive custody since its return and that the burden of proving the alleged defects rests with the Respondent. He also asserts that the Counterclaim has not been amended to plead any allegation that he altered the laptop, the Respondent's pleaded case being only that he failed to return it. 3. With regard to the references in his letters dated 14th and 15th November 2025 to a crashed computer and replacement of a storage drive, the Claimant maintains that they related solely to his personal HP ProBook and not the company-issued HP Envy laptop. He further deposes that the original charger for the HP Envy had ceased functioning prior to the handover and states that he remains willing to produce it. He therefore urges the Court to allow the application as prayed. 4. The Respondent opposed the application through Grounds of Opposition dated 7th July 2026. It contends that the application is misconceived, frivolous and an abuse of the court process. The Respondent maintains that the documents which the Claimant now seeks leave to introduce were already filed as part of his consolidated bundle on 14th November 2025. It further avers that on 28th October 2025 and 19th November 2025, the Claimant confirmed to the Court that he had filed all his documents and was ready to proceed to trial. Consequently, the Respondent argues that the introduction of additional documents during the hearing on 26th January 2026, without prior service, was irregular. The Respondent further contends that the reopening of its case does not entitle the Claimant to file the same or additional documents in response to the Counterclaim, particularly in the absence of any explanation as to why those documents were not filed earlier. As regards the request for directions on the order of witnesses and the scope of cross-examination, the Respondent submits that such directions are unnecessary because the conduct of trials is already governed by the Evidence Act, the Employment and Labour Relations Court Rules and the Civil Procedure Rules. It accordingly urges the Court to dismiss the application with costs. 5. On 7th July 2026, when directions were taken on the disposal of the application, the Court was informed that the Claimant had filed written submissions while the Respondent elected to rely entirely on its Grounds of Opposition. Claimant’s Submissions 1. In his written submissions, the Claimant identifies two issues for determination, namely: * 1. Whether he should be granted leave to file and rely upon the supplementary affidavit: and 2. Whether the court should issue directions on the hearing. 2. On the first issue, the Claimant submits that the supplementary affidavit is necessary to respond to the fresh allegations raised in the Respondent's second witness statement concerning the alleged alteration of the company-issued laptop, matters which were not before the Court when he testified. He asserts that the Respondent will suffer no prejudice if leave is granted, particularly because it was itself granted leave to reopen its case. In support of this position, he relies on Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Employment and Labour Relations Court Act, which require courts to facilitate the just, expeditious, proportionate and affordable resolution of disputes. He also invokes Articles 50 and 159(2) of the Constitution and cites the case of **Nicholas Kiptoo Arap Korir Salat *v* Independent Electoral and Boundaries Commission *&* 6 others [2013] KECA 113 (KLR)** for the proposition that the overriding objective empowers courts to prioritize substantive justice over rigid procedural requirements. He further relies on **D.T**. **Dobie *&* Company (Kenya) Limited *v* Joseph Mbaria Muchina *&* another [1980] eKLR**, in which the Court of Appeal held that courts should be slow to shut litigants out from having disputes determined on their merits. 3. On the second issue, the Claimant urges the Court to admit the supplementary affidavit as his response to the Counterclaim; direct the Respondent to call its witnesses for examination and cross-examination; permit him to be cross-examined on both his earlier evidence and the supplementary affidavit; allow the Respondent, if necessary, to file a replying affidavit within a specified period without affecting the hearing date; and thereafter direct the parties to exchange written submissions. He submits that these directions will eliminate the possibility of trial by ambush, give effect to the overriding objective and facilitate determination of the dispute on the basis of a complete and orderly record. In support of this position, he relies on the Court's case management powers under Section 1B of the Civil Procedure Act and Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2016. He consequently urges the Court to allow the application. Disposition 1. The Claimant is correct in his surmise that the Respondent's defence and counterclaim reopened has altered the character of the present proceedings. The Respondent's Defence and Counterclaim seeks to rely on a second witness statement by its ICT Manager. That statement contains allegations that the company-issued HP Envy laptop that the Claimant returned had been altered and was defective. These allegations seem to have been raised for the first time. Equity and the dictates of natural justice, read fairness, demands that the Claimant be afforded an opportunity to respond before the hearing proceeds. 2. The Court therefore grants the motion with costs in the cause. The Claimant must file and serve the additional statement and documents before close of business on 10th July 2026. Hearing on 14th July 2026 will proceed with or without the additional documents. It is so ordered. **Dated and delivered at Kisumu this 9th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**