Londo v Ibrahim

7. The Applicant further relies heavily on the fact that the matter has not proceeded to hearing. No witness has testied, no evidence has been taken and neither party has closed its case. 8. It is consequently submitted that the Defendant will suer no incurable prejudice if leave is granted. The Defendant will have an opportunity to peruse the documents before the hearing, respond to them where necessary, object to their admissibility and, most importantly, cross-examine the Plainti and any relevant witness concerning the documents. 9. The Applicant therefore urges the Court to exercise its discretion in favour of substantive justice and allow the documents to be placed on record. 10. The Defendant/Respondent opposes the Application and relies on the Written Submissions dated 12th August, 2026. 11. The Respondent's position is, in substance, that the Plainti was under an obligation to comply with the applicable procedural timelines and that the late introduction of documents ought not to be permitted without a satisfactory explanation. 12. The Respondent further contends that allowing the Application would occasion prejudice and undermine the orderly conduct of proceedings. 13. Before proceeding further, it is important to clarify one matter arising from the proceedings. Although the matter came before the Court on 29th July 2026, no order granting the Plainti leave to le the Supplementary Documents was made on that date as submitted by the Applicant. 14. The present Ruling therefore determines the Application on its merits and not on the basis that leave had previously been granted. The Application And Supporting Adavit 14. The Applicant's case, as set out in the Supporting Adavit sworn by Constant Londo on 26th July 2026, is that the Plainti has documents relevant to the determination of the dispute which were inadvertently left out of the original bundle. 15. The Applicant particularly seeks to introduce an M-Pesa statement. 16. The explanation advanced is that the Applicant's present Advocate was only recently instructed and that, upon reviewing the pleadings and the documents already on record, the omission was discovered. 17. The Applicant does not seek to amend the Plaint or introduce a new cause of action through the supplementary documents. 18. Rather, the documents are intended to supplement the evidentiary material upon which the Plainti proposes to rely in support of the existing case. 19. The Applicant contends that the Application has been made before the hearing has commenced and that the Defendant will have sucient opportunity to interrogate the documents. 20. The Applicant consequently urges the Court not to shut out potentially relevant evidence on account of a procedural omission which can be adequately remedied through directions and an appropriate order as to costs. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 2

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The Respondent's Submissions 21. The Defendant's submissions dated 12th August 2026 challenge the Plainti's entitlement to introduce documents outside the prescribed timelines. 22. The Respondent submits that procedural rules and court directions are intended to ensure that parties know the case they are required to meet and to prevent trial by ambush. 23. The Respondent maintains that the Plainti has not demonstrated sucient cause for the failure to le the documents within the prescribed period. 24. The Respondent further contends that the Court ought not to allow parties to le documents in instalments where they had an opportunity to le all their documents within the stipulated period. 25. The Respondent therefore urges the Court to dismiss the Application. Analysis And Determination 26. Having considered the application, the Supporting Adavit, the Respondent's opposition, the submissions dated 12th August 2026 and the record, I identify the following issues for determination: a. Whether the Court has jurisdiction and discretion to grant leave to le the Supplementary List and Bundle of Documents out of time; b. Whether the Applicant has given a satisfactory explanation for the omission; c. Whether the stage of the proceedings is relevant to the exercise of the Court's discretion; d. Whether the Defendant will suer prejudice if leave is granted; e. Whether any prejudice or inconvenience to the Defendant can be adequately compensated by costs and appropriate directions; f. Whether the interests of justice favour granting the application; and g. What orders should issue. Applicable Legal Framework 27. The starting point is Order 3 Rule 2 of the Civil Procedure Rules, 2010, which requires a Plainti to le with the plaint, among other things, copies of the documents to be relied upon at the trial. 28. Similarly, Order 7 Rule 5 requires a Defendant ling a defence and counterclaim to le the documents upon which the Defendant intends to rely. 29. These provisions are an important part of case management. Their purpose includes ensuring early disclosure of documentary evidence, preventing trial by ambush and enabling each party to prepare adequately for the hearing. 30. A party cannot therefore disregard procedural timelines as a matter of convenience. 31. However, the procedural rules must be applied together with the constitutional and statutory obligations imposed upon the Court. 32. Article 159(2)(d) of the Constitution provides that justice shall be administered without undue regard to procedural technicalities. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 3

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33. Article 50(1) guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court. 34. Sections 1A and 1B of the Civil Procedure Act establish the overriding objective of the Act and the Rules, requiring the Court and the parties to facilitate the just, expeditious, proportionate and aordable resolution of civil disputes. 35. Section 3A of the Civil Procedure Act preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 36. The discretion to allow documents out of time must therefore be exercised judiciously. Article 159(2) (d) does not give parties a licence to disregard procedural rules. Equally, procedural rules should not be applied in such a rigid manner as to occasion an injustice where the opposing party can adequately be protected. Principles Governing Exercise of Discretion 37. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR set out the principles governing the exercise of discretion to extend time. 38. The Court held, inter alia, that extension of time is not a right of a party but an equitable remedy available at the discretion of the Court; that the applicant bears the burden of laying a basis for the exercise of discretion; that the matter is to be considered on a case-by-case basis; that the reason for delay must be explained; and that the Court must consider prejudice to the opposing party and whether the application has been brought without undue delay. 39. Those principles have consistently been applied by the superior courts. For instance, in Gisebe v Land Registrar, Transmara Subcounty & Another; Maroi & 2 others (Interested Parties) [2024] KECA 388 (KLR), the Court of Appeal reiterated the principles in Nicholas Kiptoo Arap Salat and emphasised that the discretion must be exercised upon consideration of the particular circumstances of each case. 40. Similarly, in Aturkan Hotel Ltd & another v Anyanje [2023] KECA 1337 (KLR), the Court of Appeal reiterated that judicial discretion must be exercised judiciously, for good reason and not arbitrarily or capriciously. 41. The Court therefore considers the explanation advanced by the Applicant, the stage of the proceedings, the nature of the documents, the likely prejudice to the Respondent and the possibility of curing such prejudice. Whether The Explanation Is Sucient 42. The Applicant's explanation is that the present Advocate was only recently instructed and, upon reviewing the pleadings and documents, discovered that the M-Pesa statement and other documents had inadvertently been omitted. 43. The Court does not hold that the mere instruction of a new advocate automatically excuses previous non-compliance. Parties remain bound by procedural orders irrespective of changes in representation. 44. However, the explanation cannot be considered in isolation. 45. The Court must examine the entire factual context. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 4

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46. The documents sought to be introduced are not intended to introduce a new cause of action or substantially alter the Plainti's pleaded case. They are intended to supplement the documentary evidence in support of the case already pleaded. 47. The Applicant's explanation is also that the omission was inadvertent and was discovered upon counsel's review of the le. 48. More importantly, the application is being considered before the hearing of the suit has commenced. 49. The Court therefore nds that although the Plainti was under an obligation to comply with the earlier ling requirements, the explanation, when considered together with the stage of the proceedings and the nature of the documents, provides a sucient basis for the Court to consider exercising its discretion in the Applicant's favour. The Stage Of The Proceedings 50. The stage at which an application to introduce additional documents is made is of considerable signicance. 51. A court is more likely to nd substantial prejudice where a party seeks to introduce new evidence after the opposing party has closed its case, after witnesses have testied or at an advanced stage of trial. 52. The circumstances here are materially dierent. 1. The matter has not proceeded to hearing. 2. No witness has testied. 3. No evidence has been taken. 4. Neither party has closed its case. 50. The Defendant has therefore not lost an opportunity to challenge the evidence. 51. In Mutune v Design Forte Limited [2022] KEHC 9865 (KLR), the High Court considered an appeal arising from the expunging of a supplementary list and bundle of documents. The Court noted that the parties had not yet called evidence and that there was no indication of the manner in which the Respondent would be prejudiced by admission of the documents. The Court consequently found it fair to admit the supplementary documents, taking into account Article 159(2)(d) of the Constitution. 52. The reasoning in Mutune is particularly relevant to the present matter because here, as in that case, the trial has not commenced. 53. In Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adundo t/a Hangover Kaakwacha Hotel [2022] KEHC 2033 (KLR), the High Court considered an Application to introduce additional documents. The Court noted that neither party had been heard on the substantive suit and neither had closed its case. The Court held that where the opposing party has an opportunity to rebut the additional evidence, prejudice may be adequately addressed by allowing corresponding leave. 54. The Court in that case also recognised the relevance of Order 18 Rule 10 of the Civil Procedure Rules and Section 146 of the Evidence Act, which facilitate the recall of witnesses and further examination where necessary in the interests of a fair hearing. 55. In AA1 (Suing through AA2 as Father and Next Friend of Minor AA1) v Nderu [2023] KEHC 2907 (KLR), the High Court similarly allowed further documents after pre-trial directions, noting that https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 5

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Order 11 gives the Court discretionary power to allow additional documents and that, in the absence of credible evidence of prejudice, it was in the interests of substantive justice to allow the documents. Whether The Defendant Will Suer Prejudice 63. The Defendant has argued that allowing the supplementary documents will cause prejudice. 64. The Court accepts that prejudice to an opposing party is a material consideration. 65. However, prejudice must be demonstrated. It is not sucient merely to assert that additional documents will cause prejudice. 66. The relevant question is whether the Defendant will suer prejudice which cannot adequately be cured by an opportunity to respond, Cross-Examine, challenge admissibility and, where necessary, le responsive evidence. 67. In the present matter, the Defendant has not demonstrated such incurable prejudice. 68. The Defendant will receive the Supplementary List and Bundle before the hearing. 69. The Defendant will have an opportunity to study the documents. 70. The Defendant will be at liberty to challenge their authenticity, relevance, admissibility and probative value. 71. The Defendant will also have an opportunity to cross-examine the Plainti and any witness concerning the documents. 72. If the Defendant considers that additional documents are necessary to answer the Plainti's supplementary documents, the Court can grant corresponding leave. 73. The right of cross-examination is particularly important. The M-Pesa statement is not being admitted merely because leave to le it is granted. 74. At the trial, the Plainti will still bear the burden of establishing the evidential foundation for the document and proving the matters for which it is relied upon. 75. The Defendant will be entitled to test the document through Cross-Examination and any other procedure permitted by law. 76. The Court therefore nds that the Defendant's right to a fair hearing will remain fully protected. Whether Costs Can Cure The Prejudice 77. The Court must also consider whether any inconvenience caused to the Defendant can be adequately compensated by costs. 78. In the circumstances of this case, I nd that it can. 79. The Defendant may incur additional time and expense in considering the Supplementary Documents and preparing a response. 80. That inconvenience is real but it does not rise to the level of an incurable prejudice that requires the documents to be excluded altogether. 81. The Court considers that an award of throw-away costs of Kshs. 7,000.00 is appropriate compensation for the inconvenience occasioned to the Defendant by the Applicant's failure to include the documents within the earlier period. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 6

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82. This approach also strikes a fair balance between procedural discipline and substantive justice. 83. The Plainti's default should have consequences, but those consequences need not necessarily be the exclusion of evidence where the opposing party can be adequately protected. Guidance From The Court Of Appeal 84. The decision of the Court of Appeal in DHL Worldwide Express Kenya Ltd v Mutuma [2024] KECA 938 (KLR) is particularly instructive. 85. In that case, the appellant sought admission of supplementary documents which had been led after the close of pleadings and during the course of the hearing. The Court of Appeal considered the applicable principles and the opportunity available to the opposing party to respond and crossexamine. 86. The Court emphasised the need for a level playing eld and held that the opposing party having an opportunity to cross-examine witnesses was an important consideration. The Court ultimately found that the trial court had exercised its discretion injudiciously in refusing to admit the supplementary documents and directed that the supplementary bundle be deemed duly led. 87. The present case is, in fact, less prejudicial to the Defendant than the circumstances considered in DHL Worldwide Express. 88. In DHL Worldwide Express, part of the hearing had already taken place and the supplementary documents were introduced during the proceedings. 89. In the present matter, the hearing has not even commenced. 90. The Defendant consequently has considerably greater opportunity to prepare and respond. 91. The Court therefore nds the reasoning in DHL Worldwide Express persuasive and applicable. The Purpose Of Case Management 92. The Court recognises that Order 11 of the Civil Procedure Rules serves an important casemanagement function. 93. Its purpose includes ensuring that parties identify their issues and disclose their evidence suciently early to enable the Court to dispose of cases expeditiously. 94. It is not, however, intended to create an inexible procedural trap in circumstances where the admission of additional documents can be eected without unfairness. 95. In Mutune v Design Forte Limited, the Court observed that the provisions governing pre-trial procedure are intended to assist case management and prevent unnecessary delay, but the Court nevertheless retains discretion to deal with supplementary documents in appropriate circumstances. 96. The Court must therefore distinguish between a party who deliberately withholds documents in order to ambush an opponent and a party who demonstrates an inadvertent omission which is discovered before the hearing. 97. There is no evidence before this Court that the Plainti deliberately withheld the M-Pesa statement for purposes of ambushing the Defendant. 98. There is also no evidence that the present application is intended to delay the determination of the suit. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 7

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99. The proposed documents can be dealt with before the hearing and the Defendant can be given corresponding time to respond. The Interests Of Substantive Justice 100. The Court is conscious that Article 159(2)(d) does not abolish procedural rules. 101. The Supreme Court and Court of Appeal have repeatedly emphasised that parties must comply with procedural requirements and court orders. 102. However, Article 159(2)(d) requires the Court to avoid undue regard to procedural technicalities where adherence to a procedural requirement would result in an unjust outcome disproportionate to the default. 103. In the present matter, excluding the documents altogether would have a signicantly greater consequence for the Applicant than the prejudice that would be suered by the Defendant if the documents are admitted subject to safeguards. 104. The Court must therefore weigh the competing interests. 105. On the one hand is the need for procedural discipline. 106. On the other is the need to determine the dispute fairly on the basis of relevant evidence while ensuring that the Defendant has a meaningful opportunity to respond. 107. The balance, in my view, favours allowing the Application. The M-pesa Statement And Evidentiary Value 108. It is necessary to emphasise that the Court is not at this stage making a nding on the admissibility or probative value of the M-Pesa statement. 109. The order allowing the Applicant to le and serve the statement does not amount to an order admitting it into evidence. 110. The Plainti will have to satisfy all applicable evidentiary requirements at the trial. 111. The Defendant remains entitled to object to the document on any lawful ground. 112. In particular, where the Plainti seeks to rely on an electronic record, the requirements of the Evidence Act relating to electronic evidence must be satised where applicable. 113. The Court will determine the admissibility and weight of the document at the appropriate stage after hearing the parties. Whether The Application Should Be Allowed 114. Having considered the totality of the circumstances, I nd as follows. 115. First, the Plainti was under a duty to comply with the applicable timelines for ling documents. 116. Secondly, the omission of the documents constituted a procedural default. 117. Thirdly, the explanation that the present Advocate was only recently instructed and discovered the omission upon reviewing the pleadings and documents is not, standing alone, sucient to excuse every procedural default. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 8

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118. Fourthly, the explanation becomes sucient in the particular circumstances of this case because the omission is said to have been inadvertent, the documents relate to the existing case and, most importantly, the hearing has not commenced. 119. Fifthly, the Defendant has not demonstrated any prejudice which cannot be adequately cured by allowing it time to respond and by permitting it to cross-examine the Plainti and any relevant witness. 120. Sixthly, the Defendant can be compensated for the inconvenience occasioned by the late ling through an award of throw-away costs. 121. Seventhly, granting leave will not amount to admitting the documents into evidence or determining their evidential value. 122. Eighthly, refusing leave would potentially prevent the Court from considering evidence which may be relevant to the real dispute between the parties, notwithstanding that the Defendant will have a full opportunity to challenge it. 123. I am therefore satised that the interests of justice favour granting leave. Conclusion 124. The Court's discretion must always be exercised judicially, taking into account the facts and circumstances of the case. 125. The authorities considered above demonstrate that the relevant considerations include the explanation for the omission or delay, the stage of the proceedings, the relevance of the documents, the possibility of prejudice and whether such prejudice can be cured. 126. In the present case, the balance is strongly inuenced by the fact that the matter has not proceeded to hearing. 127. The Defendant has not yet presented its evidence and has not been deprived of an opportunity to crossexamine any witness on the supplementary documents. 128. The Defendant can be granted sucient time to consider and respond to the documents. 129. Any inconvenience caused by the late ling can be compensated through the award of Kshs. 7,000.00 as throw-away costs. 130. The Court therefore nds that this is a proper case for the exercise of discretion in favour of the Plainti/Applicant. Disposition 131. Accordingly, the Plainti/Applicant's Application is allowed on the following terms: 1. The Plainti/Applicant is hereby granted leave to le and serve the Supplementary List and Bundle of Documents, including the M-Pesa statement. 2. The Supplementary List and Bundle of Documents shall be led and served upon the Defendant/Respondent within seven (7) days from the date of this Ruling. 3. The Defendant/Respondent shall have fourteen (14) days from the date of service within which to le and serve their supplementary List and Bundle of Documents, if need be. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 9

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4. The Defendant/Respondent shall be at liberty to raise any objection to the admissibility, authenticity, relevance or probative value of any of the supplementary documents at the hearing. 5. The Defendant/Respondent shall have the full opportunity to cross-examine the Plainti and/or any relevant witness concerning the supplementary documents, including the M-Pesa statement. 6. The grant of leave herein shall not constitute an order admitting the supplementary documents into evidence. Their admissibility and evidential weight shall be determined at the hearing in accordance with the law. 7. The Plainti/Applicant shall pay the Defendant/Respondent throw-away costs of Kshs. 7,000.00 within fourteen (14) days from the date of this Ruling, in default of which the Defendant shall be at liberty to take appropriate steps for recovery. 8. For avoidance of doubt, no order granting leave was made on 29th July 2026. The leave granted herein is pursuant to this Ruling. 9. The grant of leave shall not operate to amend the pleadings, introduce a new cause of action or otherwise alter the Plainti's pleaded case. 10. The matter shall proceed to hearing on the basis of the pleadings and documents properly on record, subject to the foregoing directions. 11. Mention 28th October ,2026 30 Days Right of Appeal. RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 16TH DAY OF SEPTEMBER,2026 L.A. MUMASSABBA PRINCIPAL MAGISTRATE In the presence of : M/s Shikuku for the Applicant Respondent: Absent Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/882/eng@2026-09-16 10

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