Kiprono v Vision Fund Kenya (Civil Case E2041 of 2026) [2026] KEMC 818 (KLR)
The bottom line
#An Eldoret court allowed a party to add a supplementary affidavit because the other side's late reply left no time to respond, showing courts prioritize fairness over rigid procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted to file a supplementary affidavit
Leave granted: the applicant gave a reasonable explanation for the timing, and the respondent's prejudice can be cured by allowing it to respond in submissions.
The court held that a supplementary affidavit is discretionary and meant to respond to matters raised by the opposing party or introduce material not reasonably available earlier. The respondent's replying affidavit was served and filed minutes before the hearing, and the documents were obtained only after the respondent's denial prompted inquiries with the OCS. No proof of deliberate withholding was shown. Any prejudice could be cured by granting the respondent an opportunity to submit on the new material.
Whether granting leave would impermissibly introduce new evidence outside the pleadings
No: the application does not seek to amend pleadings but to place additional documentary material before the court; its weight and relevance fall for determination in the substantive application.
While parties are bound by pleadings under Order 2 Rules 3 and 4, the court found the application concerned supplementary affidavit material, not pleading of new facts. Whether the documents establish the alleged instruction of an auctioneer, and whether the applicant's omission from the order is legally significant, are merits questions for the substantive contempt application, not the interlocutory stage.
Legal principles established
#- The filing of a supplementary affidavit is not an automatic right but a matter of judicial discretion, to be exercised on the circumstances of each case.
- Article 159(2)(d) does not license disregard of procedural rules; it requires rules to be administered to advance substantive justice.
- At an interlocutory stage the court should be slow to determine the evidential value of documents before granting leave to file them.
Court orders
#- 1.The Notice of Motion dated 18th August, 2026 is allowed
- 2.The Applicant is granted leave to file and serve a supplementary affidavit in support of the Notice of Motion dated 4th August, 2026 together with its submissions within 7 days
- 3.The respondent to file its submissions within 7 days upon service by the applicant
- 4.Ruling date for the application dated 4th August, 2026 to be maintained as previously slated for 25th September, 2026
- 5.Costs of the Notice of Motion dated 18th August, 2026 shall be in the cause
- 6.Parties are granted leave to appeal
- Jurisdiction invoked
- Inherent discretion of the court; Civil Procedure Act (Sections 1A and 1B) and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprono v Vision Fund Kenya (Civil Case E2041 of 2026) [2026] KEMC 818 (KLR)", Case Analysis (2026). Notice of Motion dated 18th August, 2026 (in relation to Notice of Motion dated 4th August, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/818/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.