' Background and Introduction
1. I have carefully considered the application dated 6th March 2025 by which the applicant seeks leave of this Court to file a supplementary list and bundle of documents. The application is supported by the affidavit of SWARNJINT BHURJI sworn on even date. It is opposed by way of a replying affidavit sworn by PRITI PATEL, the Chief Operations Manager of the 2nd respondent company on 22nd May 2025. I have equally considered the written submissions filed by the parties.
Analysis and Determination
2. It is the respondents’ case that the instant suit was filed in 2018, and that after case management conference, the applicants obtained leave on 23rd February 2021, to file a supplementary list and bundle of documents, despite the matter having already been certified ready for hearing and a hearing date having been set.
3. The matter was scheduled for hearing on multiple occasions but was repeatedly adjourned, and it did not take off until 2nd July 2024, when the hearing finally commenced and PW1 was extensively cross-examined. These facts are not controverted by the applicant. The applicant''s explanation for seeking to produce the documents now is that they were inadvertently omitted when the previous documents were filed.
4. While I do not attribute blame to the applicant for all the delays that caused the matter to fail to proceed on several occasions, the fact remains that the applicant had sufficient time to file these documents throughout this period. It is particularly significant that the applicant now seeks to introduce this evidence midway through the proceedings and six years after the suit was filed. Such piecemeal litigation is highly disfavored by the courts and cannot be permitted, as it undermines the purpose of Order 11 of the Civil Procedure Code. This is especially true in the absence of any credible or plausible reasons for the delay in filing these documents.
5. This Court is bound by the decision of the Supreme Court in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed and Others [2018] eKLR, as cited by the respondents, which set out the principles governing the admission of additional evidence. The Supreme Court outlined these guidelines in paragraph 12, as follows:
i. the additional evidence must be directly relevant to the matter before the Court and be in the interest of justice;
ii. it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
iii. it should be shown that it could not have been obtained with reasonable diligence for use at the trial, was within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidenсе;
iv. where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has direct bearing on the main issue in the suit;
v. the evidence must be credible in the sense that it is capable of belief;
vi. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
vii. whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; whether the additional evidence discloses a strong prima facie case of willful deception of the court;
viii. the court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filing gaps in evidence;
ix. the court must find the further evidence needful;
x. a party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case on appeal, fill up the omissions or patch up the weak points in his/her case.
6. In the present case, there has been no indication or evidence suggesting that the documents the applicants now seek to introduce were unavailable at any earlier stage of the proceedings or that the same could not be produced. The sole explanation offered by the applicants is that these documents were inadvertently omitted from their previous submissions. I find this reason unconvincing, primarily due to the significant time lapse and the timing of the application. It appears to me that the evidence is being introduced at this juncture to address gaps in the case, particularly after PW1’s testimony was taken.
7. Allowing the application would cause significant prejudice to the respondents. It would unfairly disadvantage them by forcing them to respond to new evidence that ought to have been presented earlier. It would also disrupt the balance of the proceedings and undermine the principle of fairness that is fundamental to the fair hearing of disputes. The respondents would be deprived of sufficient time to scrutinize, challenge, and cross-examine the new evidence, thereby impairing their right to a fair trial. Furthermore, permitting such late submission would set a troubling precedent on compliance with pretrial conference.
Disposition
8. Accordingly, the application dated 6th March 2025 is dismissed with costs to the respondents.
'
1. I have carefully considered the application dated 6th March 2025 by which the applicant seeks leave of this Court to file a supplementary list and bundle of documents. The application is supported by the affidavit of SWARNJINT BHURJI sworn on even date. It is opposed by way of a replying affidavit sworn by PRITI PATEL, the Chief Operations Manager of the 2nd respondent company on 22nd May 2025. I have equally considered the written submissions filed by the parties.
Analysis and Determination
2. It is the respondents’ case that the instant suit was filed in 2018, and that after case management conference, the applicants obtained leave on 23rd February 2021, to file a supplementary list and bundle of documents, despite the matter having already been certified ready for hearing and a hearing date having been set.
3. The matter was scheduled for hearing on multiple occasions but was repeatedly adjourned, and it did not take off until 2nd July 2024, when the hearing finally commenced and PW1 was extensively cross-examined. These facts are not controverted by the applicant. The applicant''s explanation for seeking to produce the documents now is that they were inadvertently omitted when the previous documents were filed.
4. While I do not attribute blame to the applicant for all the delays that caused the matter to fail to proceed on several occasions, the fact remains that the applicant had sufficient time to file these documents throughout this period. It is particularly significant that the applicant now seeks to introduce this evidence midway through the proceedings and six years after the suit was filed. Such piecemeal litigation is highly disfavored by the courts and cannot be permitted, as it undermines the purpose of Order 11 of the Civil Procedure Code. This is especially true in the absence of any credible or plausible reasons for the delay in filing these documents.
5. This Court is bound by the decision of the Supreme Court in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed and Others [2018] eKLR, as cited by the respondents, which set out the principles governing the admission of additional evidence. The Supreme Court outlined these guidelines in paragraph 12, as follows:
i. the additional evidence must be directly relevant to the matter before the Court and be in the interest of justice;
ii. it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
iii. it should be shown that it could not have been obtained with reasonable diligence for use at the trial, was within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidenсе;
iv. where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has direct bearing on the main issue in the suit;
v. the evidence must be credible in the sense that it is capable of belief;
vi. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
vii. whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; whether the additional evidence discloses a strong prima facie case of willful deception of the court;
viii. the court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filing gaps in evidence;
ix. the court must find the further evidence needful;
x. a party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case on appeal, fill up the omissions or patch up the weak points in his/her case.
6. In the present case, there has been no indication or evidence suggesting that the documents the applicants now seek to introduce were unavailable at any earlier stage of the proceedings or that the same could not be produced. The sole explanation offered by the applicants is that these documents were inadvertently omitted from their previous submissions. I find this reason unconvincing, primarily due to the significant time lapse and the timing of the application. It appears to me that the evidence is being introduced at this juncture to address gaps in the case, particularly after PW1’s testimony was taken.
7. Allowing the application would cause significant prejudice to the respondents. It would unfairly disadvantage them by forcing them to respond to new evidence that ought to have been presented earlier. It would also disrupt the balance of the proceedings and undermine the principle of fairness that is fundamental to the fair hearing of disputes. The respondents would be deprived of sufficient time to scrutinize, challenge, and cross-examine the new evidence, thereby impairing their right to a fair trial. Furthermore, permitting such late submission would set a troubling precedent on compliance with pretrial conference.
Disposition
8. Accordingly, the application dated 6th March 2025 is dismissed with costs to the respondents.
'