https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9423

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **MILIMANI COMMERCIAL COURTS** **CIVIL SUIT NO. 25 OF 2016** **REBMAN AMBALO MALALA t/a** **UJENZI CONSULTANTS………………………………………….…..PLAINTIFF** **VERSUS** **NATIONAL HOSPITAL INSURANCE LIMITED..........................DEFENDANT** **RULING** 1. The Plaintiff moved this Court by a Notice of Motion dated **15 December 2025** brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Plaintiff seeks leave to file and serve a Supplementary List of Documents out of time and for the same to be deemed duly filed upon payment of the requisite court fees. 2. The Plaintiff further prays that the Defendant be granted corresponding leave, if necessary, to respond to the additional documents, and that costs be in the cause. 3. The application is supported by the grounds set out therein. The Plaintiff contends that the suit was initially being handled by a different firm of advocates and that, upon the current advocates taking over the conduct of the matter and preparing for the hearing that had been scheduled for **17 December 2025**, it was discovered that certain material documents relating to the procurement process had inadvertently not been filed. According to the Plaintiff, the omitted documents are central to the determination of the dispute as they demonstrate the procurement process that preceded the commissioning of the Plaintiff to undertake the works for which payment is now sought. 4. The Plaintiff maintained that the omission was inadvertent and attributable to an error on the part of its previous advocates. It was argued that such an error ought not to be visited upon an innocent litigant who had all along believed that all relevant documents had been properly filed and placed before the Court. The Plaintiff further submitted that no prejudice would be occasioned to the Defendant if the application were allowed because the hearing had not commenced and the Defendant could be granted leave to file any additional documents in response. The Plaintiff urged the Court to exercise its discretion in favour of substantive justice and permit the filing of the documents out of time. 5. The Defendant opposed the application through Grounds of Opposition dated **2 March 2026**. 6. The Defendant contended that the application had been brought after an inordinate delay of approximately ten years since the institution of the suit and was contrary to the overriding objective of the Civil Procedure Act, which requires the just, expeditious and affordable resolution of disputes. The Defendant averred that the matter had been mentioned and fixed for hearing severally before different judges and that, throughout those proceedings, the Plaintiff had consistently confirmed compliance with pre-trial requirements and readiness to proceed to hearing. It was therefore argued that the Plaintiff had ample opportunity to verify its pleadings and documents. 7. The Defendant further submitted that the Plaintiff had not provided a satisfactory explanation for the omission of the documents sought to be introduced. According to the Defendant, a litigant bears the responsibility of ensuring that all relevant evidence is properly filed and cannot simply shift blame to previous advocates. It was argued that the omission was evidence of indolence and lack of due diligence on the part of the Plaintiff. 8. The Defendant also maintained that allowing the application would occasion prejudice by necessitating further consultations with counsel, review of the new documents, reconsideration of its defence strategy and possible filing of additional documents and witness statements. This, it was submitted, would inevitably lead to further delay and increased costs. The Defendant emphasized that, being a public body, any additional costs would be borne out of public funds and should not be incurred because of the Plaintiff's failure to act diligently. 9. It was further contended that under Order 11 of the Civil Procedure Rules, leave to file documents outside the prescribed timelines can only be granted where satisfactory reasons have been demonstrated. The Defendant therefore urged the Court to dismiss the application with costs. **Analysis and Determination** 1. I have considered the Notice of Motion, the Grounds of Opposition and the written submissions filed by the parties. 2. The issue falling for determination is whether this Court ought to grant leave to the Plaintiff to file and serve a Supplementary List of Documents out of time. 3. The principles that guide the Court in applications for extension of time were succinctly set out by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**, where the Court stated: “This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in exercise of such discretion: 1. Extension of time 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; 2. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court; 3. Whether the Court should exercise the discretion to extend time is a consideration to be made on a case-to-case basis; 4. Where there is a reasonable cause for the delay, the delay should be explained to the satisfaction of the Court; 5. Whether there will be prejudice suffered by the respondent if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether, in certain cases, public interest should be a consideration in extending time.” 8. From the foregoing, it is evident that extension of time is a discretionary remedy. The Court must consider all the circumstances of the case, including the reason for the delay, the length of the delay, the significance of the intended action and the likely prejudice to the opposing party. 9. In the instant case, the Plaintiff attributes the omission of the documents to inadvertence on the part of its previous advocates. The Plaintiff states that the omission was only discovered when the current advocates reviewed the matter in preparation for the hearing. The Plaintiff further maintains that the documents sought to be introduced are material to its claim and relate directly to the procurement process underlying the subject contract. 10. I agree with the Defendant that the delay in bringing the application is considerable. The suit has been pending for several years, and the Plaintiff had numerous opportunities during the course of the proceedings to verify its pleadings and supporting documentation. Litigants are expected to exercise diligence in the prosecution of their cases and to comply with the requirements relating to pre-trial disclosure. 11. However, it is equally important to note that the hearing of the substantive suit has not commenced. No witness has testified, and no judgment has been rendered. The proceedings therefore remain at a stage where the introduction of additional documents cannot be said to fundamentally alter completed proceedings or defeat accrued rights. 12. The prejudice alleged by the Defendant is not insignificant. The Defendant may indeed be required to review the additional documents and, where necessary, prepare a response thereto. Nevertheless, such prejudice can be adequately remedied by granting the Defendant corresponding leave to file any further documents or witness statements it may deem necessary. The Defendant will also retain the right to challenge the authenticity, admissibility and evidentiary value of the additional documents during the trial through cross-examination and submissions. 13. The Court is enjoined under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities and to facilitate the just determination of disputes. In appropriate circumstances, the Court ought to favour a determination on the merits rather than the exclusion of evidence where any resulting prejudice can be compensated through procedural safeguards and an award of costs. 14. Having weighed the competing interests of the parties and guided by the principles articulated in **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra)**, I am persuaded that the interests of justice would be better served by allowing the Plaintiff an opportunity to place before the Court all documents it considers material to its case, while simultaneously safeguarding the Defendant's right to adequately respond. 15. Accordingly, I find merit in the application. The Notice of Motion dated **15 December 2025** is therefore allowed on the following terms: 16. The Plaintiff is granted leave to file and serve a Supplementary List of Documents within **fourteen (14) days** from the date of this ruling. 17. The Defendant is hereby granted corresponding leave to file and serve any additional documents, witness statements or other material in rebuttal within **fourteen (14) days** of service of the Plaintiff's Supplementary List of Documents. 18. The costs of the application are awarded to the Defendant. 19. This Ruling also applies to Case **HCCOMM/176/2017: PROFESSIONAL CONSULTANCE LTD VS NATIONAL HOSPITAL INSURANCE BOARD OF MANAGEMENT** 20. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *.………………for the Applicant* *……………for the Respondent*