Introduction
1. This ruling arises from a preliminary objection raised by the Defendants on 20th April 2026, during the course of trial proceedings in this matter.
2. The Plaintiff instituted this suit against the Defendants in 2019 and subsequently filed its pleadings together with supporting documents as required under the Civil Procedure Rules. In the course of pre-trial case management under Order 11 of the Civil Procedure Rules, parties were directed, as is customary, to file and exchange their respective bundles of documents and witness statements to facilitate trial preparation.
3. On 14th August 2025, the Plaintiff filed its consolidated bundle of trial documents. The said bundle contained, inter alia, documents appearing at pages 163 to 253.
4. When the matter came up before the Court on 20th April 2026, counsel for the Defendants raised a preliminary objection challenging the inclusion of the said documents in the Plaintiff’s trial bundle. The objection was premised on the ground that the impugned documents had not been part of the original record filed together with the plaint and were therefore improperly introduced into the proceedings.
5. Pursuant to directions issued by this Court on 20th April 2026, the Plaintiff filed written submissions dated 6th May 2026 opposing the objection and praying that the documents be sustained on record. No submissions had been filed on behalf of the Defendant by the time of writing this ruling.
6. In its submissions, the Plaintiff contended that the documents were properly on record. It was argued that, notwithstanding the requirement under Order 3 Rule 2 of the Civil Procedure Rules that documents accompany the plaint, the Court retains discretion under Order 11 to permit the filing of additional documents during the pre-trial process.
7. The Plaintiff further pointed out that, in the course of these proceedings, the Court had on several occasions extended timelines for the filing of documents by the parties. It was also noted that while a restrictive order had previously been issued against the Defendants to prevent further delay, no such limitation had been imposed on the Plaintiff.
8. Additionally, the Plaintiff asserted that the impugned documents were within the knowledge and possession of the 1st Defendant, having been presented to its Board of Directors, and thus their inclusion occasioned no prejudice to the Defendants.
9. In the alternative, the Plaintiff urged the Court to deem the documents as properly filed with leave, or to grant such leave retrospectively in the interests of justice.
Analysis and Determination
10. I have considered the objection, the submissions by the Plaintiff, and the applicable law.
11. The objection taken by the Defendants is a narrow one. It is directed at the propriety of the Plaintiff, including, in its trial bundle dated 14th August 2025, documents appearing at pages 163 to 253 on the ground that they were not filed with the plaint.
12. Order 3 Rule 2 of the Civil Procedure Rules provides that a plaint shall be accompanied by, inter alia, copies of documents to be relied on at trial. The provision is couched in mandatory terms. It reflects the policy of early disclosure so that litigation proceeds upon full transparency.
13. However, that provision cannot be read in isolation. The Rules themselves provide a complementary framework under Order 11 of the Civil Procedure Rules, which governs pre-trial conferences and case management. Under this provision, the Court exercises wide discretion to give directions on the filing of additional documents and may extend time for compliance with procedural requirements.
14. Further, Order 50 Rule 6 of the Civil Procedure Rules donates to the Court an express power to enlarge time, even where the time originally prescribed has expired. This power is part of the Court’s general discretion to ensure that procedural rules serve, rather than hinder, the administration of justice.
15. The jurisprudence of the courts has consistently affirmed this approach. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court emphasized that extension of time is a discretionary remedy to be exercised judiciously and in the interests of justice. Some of these factors suggested by the Supreme Court include the following:
i. Where there is a reasonable cause for the delay, the same should be expressed to the satisfaction of the court;
ii. Whether there would be any prejudice suffered by the respondent, if extension is granted;
iii. Whether the application has been brought without undue delay; and
iv. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
16. Likewise, in Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] KLR 470, the Court observed that rules of procedure are intended to facilitate justice and should not be applied in a manner that defeats substantive rights. In particular, the Court stated that:
“... Rules of procedure are hand maidens and not mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not to fetter or choke it. In my opinion, where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form and procedure which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect ought not be treated as nullifying the legal instruments thus affected. In those instances the Court should rise to its higher calling to do justice by saving the proceedings in issue. … That purpose may be attained by rejecting a defective affidavit and ordering that a fresh and complying one be made and filed on record.”
17. In this case, the record shows that the matter had been subjected to case management under Order 11 of the Civil Procedure Rules and that, in the course of those proceedings, the Court has, from time to time, extended timelines for the filing of documents by the parties. There is nothing to show that the Plaintiff filed the impugned documents in breach of any specific order of the Court.
18. In those circumstances, it would be artificial to hold that the Plaintiff was irrevocably bound to the documents filed with the plaint.
19. The Defendants’ objection must also be examined against the test of prejudice. The Plaintiff has stated, without contradiction, that the impugned documents were presented to the 1st Defendant’s Board of Directors and are in its possession. That being so, the Defendants cannot credibly contend that they are being taken by surprise. There is no demonstration of prejudice beyond the bare assertion that the documents were not filed with the plaint.
20. As was stated by the Court of Appeal in Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR), a mistake or omission should not, without more, shut a litigant out from the seat of justice. The Court stated as follows:
“….A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”
21. Similarly, in the present case, to exclude documents that appear to be relevant to the issues in controversy, in the absence of demonstrated prejudice, would run counter to those principles behind the overriding objective in sections 1A and 1B of the Civil Procedure Act and by Article 159(2)(d) of the Constitution, under which the Court is enjoined to facilitate the just, expeditious, and proportionate resolution of disputes and to administer justice without undue regard to technicalities.
22. Consequently, the Court finds it proper to exercise its discretion to grant leave for the documents to be deemed as duly filed.
23. In the result, the preliminary objection lacks merit. It is hereby dismissed.
24. Accordingly, the documents contained at pages 163 to 253 of the Plaintiff’s trial bundle dated 14th August 2025 are properly on record and are admitted, subject to proof in the usual manner at the trial.
25. Costs of this objection shall be in the cause.
26. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Masore Nyangau…………………for the Plaintiff
Kamande……………for the Defendant
1. This ruling arises from a preliminary objection raised by the Defendants on 20th April 2026, during the course of trial proceedings in this matter.
2. The Plaintiff instituted this suit against the Defendants in 2019 and subsequently filed its pleadings together with supporting documents as required under the Civil Procedure Rules. In the course of pre-trial case management under Order 11 of the Civil Procedure Rules, parties were directed, as is customary, to file and exchange their respective bundles of documents and witness statements to facilitate trial preparation.
3. On 14th August 2025, the Plaintiff filed its consolidated bundle of trial documents. The said bundle contained, inter alia, documents appearing at pages 163 to 253.
4. When the matter came up before the Court on 20th April 2026, counsel for the Defendants raised a preliminary objection challenging the inclusion of the said documents in the Plaintiff’s trial bundle. The objection was premised on the ground that the impugned documents had not been part of the original record filed together with the plaint and were therefore improperly introduced into the proceedings.
5. Pursuant to directions issued by this Court on 20th April 2026, the Plaintiff filed written submissions dated 6th May 2026 opposing the objection and praying that the documents be sustained on record. No submissions had been filed on behalf of the Defendant by the time of writing this ruling.
6. In its submissions, the Plaintiff contended that the documents were properly on record. It was argued that, notwithstanding the requirement under Order 3 Rule 2 of the Civil Procedure Rules that documents accompany the plaint, the Court retains discretion under Order 11 to permit the filing of additional documents during the pre-trial process.
7. The Plaintiff further pointed out that, in the course of these proceedings, the Court had on several occasions extended timelines for the filing of documents by the parties. It was also noted that while a restrictive order had previously been issued against the Defendants to prevent further delay, no such limitation had been imposed on the Plaintiff.
8. Additionally, the Plaintiff asserted that the impugned documents were within the knowledge and possession of the 1st Defendant, having been presented to its Board of Directors, and thus their inclusion occasioned no prejudice to the Defendants.
9. In the alternative, the Plaintiff urged the Court to deem the documents as properly filed with leave, or to grant such leave retrospectively in the interests of justice.
Analysis and Determination
10. I have considered the objection, the submissions by the Plaintiff, and the applicable law.
11. The objection taken by the Defendants is a narrow one. It is directed at the propriety of the Plaintiff, including, in its trial bundle dated 14th August 2025, documents appearing at pages 163 to 253 on the ground that they were not filed with the plaint.
12. Order 3 Rule 2 of the Civil Procedure Rules provides that a plaint shall be accompanied by, inter alia, copies of documents to be relied on at trial. The provision is couched in mandatory terms. It reflects the policy of early disclosure so that litigation proceeds upon full transparency.
13. However, that provision cannot be read in isolation. The Rules themselves provide a complementary framework under Order 11 of the Civil Procedure Rules, which governs pre-trial conferences and case management. Under this provision, the Court exercises wide discretion to give directions on the filing of additional documents and may extend time for compliance with procedural requirements.
14. Further, Order 50 Rule 6 of the Civil Procedure Rules donates to the Court an express power to enlarge time, even where the time originally prescribed has expired. This power is part of the Court’s general discretion to ensure that procedural rules serve, rather than hinder, the administration of justice.
15. The jurisprudence of the courts has consistently affirmed this approach. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court emphasized that extension of time is a discretionary remedy to be exercised judiciously and in the interests of justice. Some of these factors suggested by the Supreme Court include the following:
i. Where there is a reasonable cause for the delay, the same should be expressed to the satisfaction of the court;
ii. Whether there would be any prejudice suffered by the respondent, if extension is granted;
iii. Whether the application has been brought without undue delay; and
iv. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
16. Likewise, in Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] KLR 470, the Court observed that rules of procedure are intended to facilitate justice and should not be applied in a manner that defeats substantive rights. In particular, the Court stated that:
“... Rules of procedure are hand maidens and not mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not to fetter or choke it. In my opinion, where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form and procedure which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect ought not be treated as nullifying the legal instruments thus affected. In those instances the Court should rise to its higher calling to do justice by saving the proceedings in issue. … That purpose may be attained by rejecting a defective affidavit and ordering that a fresh and complying one be made and filed on record.”
17. In this case, the record shows that the matter had been subjected to case management under Order 11 of the Civil Procedure Rules and that, in the course of those proceedings, the Court has, from time to time, extended timelines for the filing of documents by the parties. There is nothing to show that the Plaintiff filed the impugned documents in breach of any specific order of the Court.
18. In those circumstances, it would be artificial to hold that the Plaintiff was irrevocably bound to the documents filed with the plaint.
19. The Defendants’ objection must also be examined against the test of prejudice. The Plaintiff has stated, without contradiction, that the impugned documents were presented to the 1st Defendant’s Board of Directors and are in its possession. That being so, the Defendants cannot credibly contend that they are being taken by surprise. There is no demonstration of prejudice beyond the bare assertion that the documents were not filed with the plaint.
20. As was stated by the Court of Appeal in Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR), a mistake or omission should not, without more, shut a litigant out from the seat of justice. The Court stated as follows:
“….A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”
21. Similarly, in the present case, to exclude documents that appear to be relevant to the issues in controversy, in the absence of demonstrated prejudice, would run counter to those principles behind the overriding objective in sections 1A and 1B of the Civil Procedure Act and by Article 159(2)(d) of the Constitution, under which the Court is enjoined to facilitate the just, expeditious, and proportionate resolution of disputes and to administer justice without undue regard to technicalities.
22. Consequently, the Court finds it proper to exercise its discretion to grant leave for the documents to be deemed as duly filed.
23. In the result, the preliminary objection lacks merit. It is hereby dismissed.
24. Accordingly, the documents contained at pages 163 to 253 of the Plaintiff’s trial bundle dated 14th August 2025 are properly on record and are admitted, subject to proof in the usual manner at the trial.
25. Costs of this objection shall be in the cause.
26. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Masore Nyangau…………………for the Plaintiff
Kamande……………for the Defendant