https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/464

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCELRC CAUSE NO. E505 OF 2024** **GEOFFREY OMONDI OKUMU.................................................................CLAIMANT** **VERSUS** **SMART JOBS LIMITED..........................................................................RESPONDENT** **RULING** 1. Before Court is the Respondent's Notice of Motion dated 18th March 2026, brought under Order 8 Rule 5(1), Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the applicable provisions of the Employment and Labour Relations Court (Procedure) Rules. 2. The Respondent principally seeks orders that the judgment scheduled for delivery on 26th March 2026 be arrested and stayed, that its case be reopened, and that it be granted leave to amend its Reply to Claim and file a supplementary witness statement together with additional documentary evidence. 3. The application is supported by the affidavit of Julius N. Kathuki. He depones that after the hearing had concluded and the Respondent's case had closed, counsel discovered a typographical error in the Reply to Claim and a letter dated 20th November 2023. 4. According to the Respondent, the Claimant's telephone number was mistakenly typed as 0702211073 instead of 0702211973, being the number allegedly used by the Claimant to communicate with one of the Respondent's directors, Veronica Mwangi. The Respondent contends that the omission and typographical error relate to a crucial issue concerning its allegation that the Claimant absconded duty. It therefore seeks to amend its pleadings, introduce WhatsApp communications and file a supplementary witness statement, contending that the Claimant would suffer no prejudice since he may respond by filing further pleadings and be compensated by thrown-away costs. 5. The application is opposed through the Replying Affidavit sworn by the Claimant on the ground that the matter had already proceeded to full hearing under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, both parties had closed their respective cases, written submissions had been filed, and the matter had already been reserved for judgment. 6. The Claimant contends that the Respondent's application is merely an afterthought brought after discovering weaknesses in its case. He argues that the alleged typographical error affects only one digit of a telephone number and cannot amount to a grave error of record warranting reopening of proceedings. 7. He further submits that the WhatsApp messages were always within the Respondent's possession and could, with reasonable diligence, have been produced during the hearing. According to the Claimant, reopening the case at this stage would occasion serious prejudice, delay delivery of judgment and offend the principle of finality in litigation. 8. Both parties filed written submissions reiterating their respective positions. **Issues for Determination** 1. Having considered the pleadings, affidavits and submissions, the issues falling for determination are: 2. Whether sufficient grounds have been established to warrant reopening the Respondent's case. 3. Whether the Respondent has satisfied the threshold for arresting or staying delivery of judgment. 4. Whether leave should be granted to amend the Reply to Claim and introduce supplementary evidence after conclusion of the hearing. 5. Who should bear the costs of the application. **Analysis** 1. It is common ground that the hearing in this matter was fully concluded. Both parties testified, closed their respective cases, filed written submissions and the Court fixed the matter for judgment on 26th March 2026. The Respondent does not dispute these facts. Indeed, paragraph 2 of the supporting affidavit expressly acknowledges that counsel only noticed the alleged error after the hearing and close of the case. 2. Although courts possess jurisdiction to permit amendments at any stage of proceedings, that discretion is neither automatic nor unfettered. It must always be exercised judiciously, taking into account the stage of the proceedings, the explanation offered for the amendment, the importance of the proposed amendment, and the prejudice likely to be occasioned to the opposing party. 3. The amendment sought herein is not one sought before commencement of trial or during hearing. It is sought after the entire trial has concluded and after judgment has already been scheduled for delivery. At such an advanced stage, the threshold becomes significantly higher because reopening proceedings undermines the equally important principle that litigation must come to an end. 4. The Respondent argues that the amendment merely seeks to correct a typographical error in a telephone number. The Court has carefully considered that contention. The proposed amendment concerns substitution of the telephone number 0702211073 with 0702211973 and introduction of WhatsApp communications allegedly demonstrating that the Claimant communicated through the latter number. 5. While the Court accepts that typographical errors may, in appropriate cases, be corrected, the present application seeks much more than correction of a clerical error. The Respondent also seeks reopening of its case, introduction of additional documentary evidence, filing of a supplementary witness statement and amendment of substantive pleadings after trial has concluded. Those are substantive procedural steps whose effect would inevitably reopen the entire evidentiary process. 6. The explanation advanced for failure to produce the WhatsApp messages during the hearing is equally unsatisfactory. The Respondent does not contend that the messages were newly discovered or previously unavailable. On the contrary, they were always within its possession. The only explanation offered is that counsel noticed the typographical error after closure of the case. That explanation does not account for why the alleged WhatsApp communications themselves were never produced during the hearing despite being available. 7. The Court is persuaded by the Claimant's submission that the application is essentially an attempt to strengthen the Respondent's case after appreciating the evidentiary shortcomings exposed during trial. Courts should be slow to permit parties to reconstruct their cases after closure of proceedings merely because they subsequently discover omissions in the presentation of their evidence. 8. The authorities cited by the Respondent correctly state the general principle that amendments should ordinarily be freely allowed where they facilitate determination of the real issues in controversy. However, those principles cannot be divorced from the procedural posture of each case. Liberal amendment principles cannot override the need for finality where proceedings have already been fully heard and judgment is imminent. 9. Similarly, the Court is guided by the principle articulated in Board of Governors, Moi High School Kabarak & Another v Malcolm Bell [2013] eKLR, that the power to reopen proceedings or arrest judgment must be exercised cautiously and only upon sufficient cause being demonstrated. Likewise, the reasoning in Smith v New South Wales Bar Association [1992] 176 CLR 256 underscores that reopening after closure is reserved for exceptional circumstances where failure to do so would occasion a miscarriage of justice. 10. No such exceptional circumstances have been demonstrated here. 11. The alleged error concerns a single digit in a telephone number. Whether or not the correction is factually accurate, the Respondent has not demonstrated how failure to make that correction would occasion a miscarriage of justice warranting reopening an entire concluded trial. More importantly, the Respondent has failed to explain why both the proposed amendment and the accompanying documentary evidence were not presented before closure of its case despite having every opportunity to do so. 12. The Court is equally satisfied that reopening the proceedings at this stage would prejudice the Claimant. The Claimant has already concluded his case, incurred the expense of trial, filed submissions and legitimately expects determination of the dispute. Allowing fresh pleadings and evidence would inevitably require reopening proceedings, possible recall of witnesses, additional submissions and further delay of judgment. Such prejudice cannot adequately be remedied merely through an award of thrown-away costs. 13. The overriding objective of the Court is not only to determine disputes on their merits but also to ensure expeditious, proportionate and final determination of litigation. Finality remains an indispensable component of the administration of justice. 14. Accordingly, the Respondent has failed to establish sufficient grounds either for reopening the proceedings or for arresting delivery of judgment. **Disposition** 1. The Notice of Motion dated 18th March 2026 lacks merit and is hereby dismissed. Accordingly: 2. The prayer seeking arrest and stay of delivery of the judgment scheduled for 26th March 2026 is declined. 3. The prayer seeking reopening of the Respondent's case is declined. 4. Leave to amend the Reply to Claim and to file a supplementary witness statement and supplementary documents is refused. 5. The judgment shall proceed on the scheduled date or on such other date as the Court may direct administratively. 6. The Respondent shall bear the costs of this application. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS At MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**