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ELRCAllowedPetition No. E106 of 2026· [2026] KEELRC 2421 (KLR)

Kamau v Wellan Travels Ltd (Petition E106 of 2026) [2026] KEELRC 2421 (KLR)

Employment and Labour Relations Court
20 August 2026
JKJemimah Keli
3,811 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (Jemimah Keli, J) determines a notice of motion dated 10th June 2026 in Petition No. E106 of 2026, an anti-trafficking constitutional petition. The applicant sought a single order: leave to file a counsellor's report dated 10th June 2026 out of time, after close of pleadings. The applicant argued the report was necessary to prove the psychological impact of the trafficking incident and the pleaded violations of human dignity and the right not to be treated in a cruel, inhuman or degrading manner, that it did not alter the factual matrix, and that the respondent would suffer no prejudice, having itself been allowed to file its response two months late. The respondent opposed, contending the counselling sessions commenced only seven days after filing, that the report was never pleaded or referenced, that it introduced new expert evidence of psychological injury and amounted to a trial by ambush designed to patch up weak points, and that substantial prejudice would result. The court framed three issues: relevance and necessity; whether the report altered the factual matrix or filled gaps; and prejudice. Relying on Rule 38 of the ELRC (Procedural) Rules, 2024, Rule 30 of the Mutunga Rules and the case law, the court found the report relevant and not gap-filling, and held any prejudice curable by allowing the respondent to file its own expert opinion within 30 days and to cross-examine the report's author. The application was allowed, leave granted, and mention set for 22nd September 2026 for pretrial directions. No costs order was made.

Key legal issues

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01

Whether leave should be granted to file a counsellor's report out of time after close of pleadings

Holding

Leave granted; the report is relevant to the pleaded violations, does not alter the factual matrix, and any prejudice to the respondent is curable by a responding expert report and cross-examination.

Reasoning

Rule 38 of the ELRC (Procedural) Rules, 2024 permits the court to allow filing of a supplementary bundle after close of pleadings, and the Mutunga Rules allow extension of time. The court found the report relevant to proving the psychological impact of the alleged trafficking and the pleaded violations of dignity and freedom from cruel, inhuman or degrading treatment. It did not introduce new issues or fill gaps, and prejudice was remediable through reciprocal leave and cross-examination.

p. 14
02

Whether admission of additional evidence must not be used to fill gaps or lacunae

Holding

The court was satisfied the report was not being used to remove lacunae or fill gaps; it buttresses pleaded constitutional violations rather than creating new ones.

Reasoning

Applying the Supreme Court's guidance in Mahamud Mohamed v Ahmed Abdullahi Mohamad & 3 Others, the court had to be satisfied the additional evidence was needful and not deployed to fill evidentiary gaps. On perusal of the petition, which already alleged violations of dignity and freedom from cruel treatment, the court found the report merely proves the psychological aspects of violations already pleaded and would only guide on extent of harm and quantum.

p. 14

Legal principles established

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  • After the close of pleadings, the Court may allow the filing of a supplementary bundle of documents, and prejudice to the other party may be cured by allowing a responding expert opinion and cross-examination of the author of the new evidence.

Court orders

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  1. 1.Leave granted to the applicant to file the counsellor report dated 10th June 2026 out of time within 7 days and serve
  2. 2.The respondent granted leave to file a separate expert opinion, if they so wish, within 30 days of the decision
  3. 3.The counselling report to be produced at the hearing by the author for any cross-examination by the respondent
  4. 4.Mention on 22nd September 2026 for pretrial directions
Jurisdiction invoked
Article 50 of the Constitution; section 3A of the Civil Procedure Act; Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Rule 38 of the Employment and Labour Relations Court (Procedural) Rules, 2024

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, "Kamau v Wellan Travels Ltd (Petition E106 of 2026) [2026] KEELRC 2421 (KLR)", Case Analysis (2026). Petition No. E106 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2421/eng@2026-08-20

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