1.Upon perusing the notice of motion application dated 15th September 2021 and filed on 28th September 2021 by Kenya Railways Corporation, the 1st appellant and applicant herein, seeking leave to file its supplementary record of appeal being the replying affidavit sworn by AK Maina dated 20th February 2014 and the annexures thereon; the application being brought under the provisions of article 159(2) of the Constitution, rules 3(2),(4) & (5), and 15(2) of the Supreme Court Rules 2020;
2.Upon reading the grounds on the face of the application, the supporting affidavit sworn on 15th September 2021 by Prof Albert Mumma SC, counsel for the applicant and the written submissions by the applicant dated 24th September 2021, and in particular the grounds in support of the application that the applicant inadvertently, by omission, failed to include as part of the record the replying affidavit by AK Maina, the then Managing Director of the applicant, the record of appeal having been filed alongside the petition on 22nd July 2020; that the omission was only discovered while the applicant was preparing submissions to the petition and upon realization the applicant proceeded to file this application in good faith; that the said replying affidavit forms the crux of the interpretation of the law by the Court of Appeal and is integral to the disposition of the Court of Appeal; that greater public interest and interest of justice favours the applicant to have a complete record to be placed before this court as stated in Law Society of Kenya v Centre for Human Rights & Democracy and 12 others  eKLR and that there is no prejudice suffered by the respondent, the replying affidavit having been part of the record at the Court of Appeal;
3.And considering that none of the parties are opposed to the said application;
4.We find that though the applicant has invoked this court’s jurisdiction to extend time under rule 15(2) of the Supreme Court Rules 2020, the application does not seek any express relief for extension of time. Nevertheless, rule 40 of the Supreme Court Rules 2020 deals with the contents of a record of appeal to include the relevant pleadings required to determine the appeal. Under rule 40(4) where a document is omitted from the record of appeal under this rule, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record. It is well over fifteen days and indeed over one year between the filing of the record of appeal and the present application. The applicant’s counsel merely states in his affidavit that he discovered the absence of the supplementary record of appeal when preparing the submissions for the petition making it difficult to address the question of delay.
5.We note that the applicant has not explained the delay or when he made the discovery. The nature of the proceedings are such that they involve matters of great public interest that deserve conclusive determination as we noted in the related proceedings being Attorney General & another v Okiya Omtatah Okoiti & 4 others Supreme Court Application No 24 (E008) of 2020  eKLR. Considering the nature of the document sought to be introduced through the supplementary record of appeal, it is evident that the replying affidavit by the then Managing Director of the applicant is a very crucial document as it was the substantive response to the petition as filed at the High Court and it was placed before the Court of Appeal as part of the record that was considered by the appellate court in its decision.
6.Having considered the foregoing, we find that the applicant is deserving of our exercise of discretion in its favour and no prejudice will be occasioned to the respondents.
7.Consequently, the notice of motion dated 15th September 2021 and filed on 28th September 2021 be and is hereby allowed in the following terms:Orders accordingly.