Mulu v Total Kenya PLC (Cause E629 of 2021) [2025] KEELRC 22 (KLR)
The bottom line
#A Kenyan employment court allowed an employee to add forgotten documents to his case, ruling that a lawyer's mistake shouldn't punish the client.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should grant leave to the Claimant to file additional evidence (supplementary documents) after the close of pleadings
- 2.Whether the reasons given for the delayed filing (mistake/negligence of former advocates) justify the grant of leave
- 3.Whether the documents sought to be introduced are relevant to the dispute
- 4.Whether the Respondent would suffer prejudice that cannot be remedied
Key legal issues
#Leave to file additional evidence after close of pleadings under Rule 14(10) proviso
Leave granted; the proviso to Rule 14(10) permits filing of a supplementary bundle after close of pleadings with the court's leave, exercised judiciously
The court adopted the three-part test from Ongeri v Skytop Technologies Ltd and allied ELRC authorities: reason for delayed filing, relevance of documents, and prejudice to the opponent. The Claimant explained the delay as his former advocates' negligent omission despite timely furnishing of documents. The court held mistakes of counsel should not be visited on litigants, found the documents prima facie relevant, and held any prejudice could be cured by allowing the Respondent to respond.
Relevance and evidential value of the proposed documents
The documents are prima facie relevant; their evidential value is a matter for trial, cross-examination and rebuttal
At the interlocutory stage the court is not concerned with the evidential value of documents, only their relevance to the dispute, the reason for delayed filing and possible remediable prejudice. The court found the Mpesa statements, P9 form, call logs, audio and email screenshots prima facie relevant and left their weight to the trial process.
Legal principles established
#- After the close of pleadings a party may only file additional documents with the leave of the court, and the discretion should be applied judiciously
- The court considering an application to introduce additional documents after pre-trial considers the reasons for the delay, the relevance of the documents, and the prejudice to the opponent and whether it can be remedied
- Mistakes of counsel should not be visited upon litigants
Court orders
#- 1.The Claimant's application dated June 7, 2024 is found merited and allowed with costs abiding in the course
- 2.The Claimant to file the supplementary list of documents within 14 days
- 3.The Respondent to be at liberty to file a response within a similar period of 14 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution invoked by the Claimant; Rule 14(10) ELRC (Procedure) Rules, 2016
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Claimant's Application dated June 7, 2024 is found merited and is hereby allowed with costs abiding in the course. The Claimant to file the supplementary list of documents in 14 days and the Respondent be at liberty to file a response within similar period.
after close of pleadings a party may only file additional documents with the leave of the court. This is also with discretion of the court which should be applied judiciously.
the court appreciates that mistakes of counsel should not be met upon litigants and agrees with the Claimant's explanation for delay.
If the trial has not commenced, the Court may exercise its discretion and admit new documents, if it is in the interest of justice.
Issues in the judgment
#The judgment does not state the full name or cause number of the Respondent or the case number of the suit
Counsel referred to 'rule 14(100' of the ELRC Procedure Rules, an apparent typographical error for Rule 14(10)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulu v Total Kenya PLC (Cause E629 of 2021) [2025] KEELRC 22 (KLR)", Case Analysis (2025). Not stated in the judgment (ELRC Cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/22/eng@2025-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.