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ELRCOtherNot stated in the judgment· [2025] KEELRC 1735 (KLR)

Otengo v Bidco Africa Limited (Cause E073 of 2024) [2025] KEELRC 1735 (KLR)

Employment and Labour Relations Court
16 June 2025
NMNzioki Wa Makau
588 words in judgment
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The bottom line

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Kenya's Employment Court allowed late-filed documents in an employment case because the other side suffered no prejudice from their use.

What this practically means

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Executive summary

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The Claimant's counsel objected to the production of a further list of documents filed by the Respondent on 12th/13th May 2025, arguing that the documents were filed after close of pleadings and without leave of the Court, and sought their expungement together with all references to them in the evidence on record. The Respondent's counsel opposed, submitting that the documents were filed and received on 13th May 2025 without objection, that he had cross-examined the Claimant on the documents and obtained answers, that no prejudice would be suffered, and that the documents would assist in the just determination of the dispute. He apologised for the delay and offered to allow the Claimant time to prepare if needed. Relying on Rule 38 of the Employment and Labour Relations Court (Procedure) Rules 2024, which requires documents to be filed and served at least fourteen days before the case is set down for hearing but also permits the court to allow supplementary bundles after close of pleadings, the court noted that the hearing date of 16th June 2025 was set on 5th June 2025, by which time the documents had been filed at least fourteen days earlier. The only tangible objection was the absence of leave. The Claimant had answered questions on the documents in cross-examination and re-examination without issue. Discerning no prejudice, the court overruled the objection, allowed production of the documents in the bundle filed on 12th May 2025, and directed that examination in chief continue.

Key legal issues

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01

Whether documents filed after close of pleadings without leave are admissible

Holding

Objection overruled; documents allowed as no prejudice was shown and they assist just determination

Reasoning

Rule 38 permits filing of documents 14 days before hearing and allows the court to admit supplementary bundles after close of pleadings. The documents were filed 14 days before the initial hearing date of 5th June 2025. The Claimant had been cross-examined and re-examined on them without issue, so no prejudice was discerned. Overriding consideration was a just determination of the dispute.

p. 2

Legal principles established

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  • The ELRC Procedure Rules contemplate filing of documents without leave as well as filing of supplementary bundles with leave after close of pleadings
  • In deciding whether to admit documents filed late, the court considers the prejudice to the opposite party and the utility of the documents to the just determination of the dispute

Court orders

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  1. 1.Objection to the production of the further list of documents overruled
  2. 2.Production of the documents contained in the bundle filed on 12th May 2025 allowed
  3. 3.Examination in chief to continue
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2024, Rule 38

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Otengo v Bidco Africa Limited (Cause E073 of 2024) [2025] KEELRC 1735 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1735/eng@2025-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.