23.The singular issue for determination is whether the Respondent’s Notice of Motion dated 2nd June, 2023 is merited.
24.The Respondent/Applicant is seeking leave to file “additional documents” out of time.
25.The applicant alleges that the Claimant perjured himself when he testified on 3rd May, 2023 and the “additional documents” are intended to correct the position or put the record straight.
26.It is not in dispute that the instant suit was filed on 31st October, 2017 and the Respondent filed an Amended Response to the Memorandum of Claim on 25th February, 2019 attaching a witness statement of the Respondent, Mr. Kairima Magambo.
27.On his list of documents dated 12th February, 2019, counsel for the Respondent stated that;
28.The applicant relies on Order 50 Rule 6 of the Civil Procedure Rules, 2010 which the Respondent’s counsel faults arguing that the Order and Rule relates to enlargement of time by consent of the parties and her client. The Claimant had not consented to the enlargement of time.
29.Order 50 Rule 6 of the Civil Procedure Rules, 2010 provides that;
30.Since the provision requires written consent of the parties or their advocates without the court’s intervention, it is evident that the Respondent/Applicant’s Notice of Motion cannot be expressed under Order 50 Rule 6 of the Civil Procedure Rules, 2010.
31.The foundation of the Notice of Motion must be elsewhere, Order 50 Rule 5 which provides that;
32.Similarly, Section 95 of the Civil Procedure Act confer upon the court discretion to enlarge time even though the period originally fixed or granted for the doing of an act under the Act has expired.
33.Equally in Nicholas Kiptoo Arap Koriri Salat V Independent Electoral and Boundaries Commission & 7 others (2014) eKLR, cited by the Claimant’s counsel, the Supreme Court articulated the factors a court should consider in exercising its discretion to extend time as follows;a.“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
34.The explanation given by counsel for seeking extension of time to file over 100 pages of documents styled as “additional documents” is to disprove the Claimant’s testimony that he was not paying taxes or making NSSF and NHIF contributions.
35.The suit herein was certified ready for hearing as early as 4th February, 2019 when the court directed the Respondent to file a witness statement and parties were to thereafter fix a hearing date at their convenience.
36.The matter was thereafter referred to mediation.
37.A notice to show cause issued by the court suo moto was vacated on 25th January, 2022 at the instance of the Claimant and a hearing set for 23rd June, 2022 when the Claimant’s counsel was not present.
38.Mr. Eredi sought the dismissal of the suit but the court instead pushed the hearing to 7th December, 2022 on which date the Claimant’s counsel was initially ready to proceed but sought an adjourned which the court granted.
39.The court was not sitting on 27th February, 2023 and hearing was slated for 3rd May, 2023 by consent.
40.On that day, a Mr. Mbae appeared for the Respondent at 9.28 am when the file was placed aside in preparation for the hearing and hearing proceeded from 10.28 am in the presence of both counsels.
41.At the close of the Claimant’s case, the Respondent was not ready to proceed as his witness was absent and hearing was adjourned to 18th July, 2023 which hearing the Respondent’s counsel torpedoed by the instant application.
42.A review of the history of the case reveals that none of the parties has been extremely eager to conclude the case.
43.The non-availability of either party at different times explains the delay in having the matter concluded.
44.In his claim, the Claimant alleged that his monthly salary was Kshs.18,000/= per month and was an employee from 2009 to 28th April, 2017 when he was declared redundant and had no written contract and claimed various reliefs such as three months notice pay, severance pay, underpayment for 9 years and 12 months salary for the unlawful termination.
45.In its amended response, the Respondent denied having employed the Claimant but admit having declared him redundant lawfully and was accorded prior notice and all terminal dues were paid, Kshs.33,078.00.
46.Intriguingly, the Respondent decided not to file any document and was explicit that it would rely on the Claimant’s documents, the redundancy notice dated 28th April, 2017, a patently unwise decision.
47.Although Mr. Eredi appears to blame the previous counsel, he was present in court on 12th November, 2021 when the Notice to Show Cause was scheduled for hearing and thus had sufficient time to evaluate his case and determine whether his defence was solid or wanting but opted to wait assess the Claimant’s evidence.
48.Having prayed for severance pay and underpayment, it behoved the Respondent to avail documentation to counter these prayers. Evidence of NSSF contributions was critical. Evidence of the Claimant’s gross and net salary was essential as well.
49.The “additional documents” which the Respondent’s counsel is seeking leave to file ought to have been filed with the Respondent’s Amended Response in 2019.
50.Significantly, the documents in question are not “additional” as no other had been filed previously. In a nutshell, the Respondent is seeking leave to file its “list and bundle of documents” camouflaged as additional documents and if leave is granted, they will be the only documents the Respondent will have on record as it had not filed any other. The contention that the law provides for the recall of witnesses cannot in the court’s view avail the Respondent.
51.As regards the timing of the application for leave, it has taken the Respondent inordinately long to do so and no reasonable justification has been provided.
52.The foregoing is consistent with the sentiments of the Supreme Court in Bwana Mohamed Bwana V Silvano Buko Bonaya (2015) eKLR as follows;
53.The Respondent/Applicant counsel’s argument that the additional documents are necessary since the Claimant perjured during the hearing, is in the court’s view unpersuasive for the simple reason that witnesses routinely perjure themselves. If every time a witness perjured himself or herself, the court granted leave for the opposite party to adduce controverting evidence cases would never progress.
54.The court is not persuaded that the Respondent has discharged the burden of laying a basis for extension of time to file documents.
55.Being an equitable remedy and available to deserving applicants only, the court is in agreement with the Claimant counsel’s argument that the applicant had to show that it deserved the extension.
56.As regards prejudice to the Respondent/Claimant if extension is granted, it would further delay the conclusion of a suit filed in 2017 as the Claimant would be recalled to testify or be cross-examined.
57.Guided by the foregoing position of the law, the court is persuaded and holds that the applicant has failed to demonstrate that the Notice of Motion dated 2nd June, 2023 meets the threshold for grant of leave to file documents out of time.
58.Finally, the court is in agreement with the sentiments of Oguttu Mboya J. in Neptune Credit Management LTD & another v Dr. Jigisha P. Jani & another (2021) eKLR as follows;
59.In the upshot, the Notice of Motion dated 2nd June, 2023 is unmerited and it is accordingly dismissed with no orders as to costs.