There have been a persistent regarding the proper procedure to be followed when a party wishes to file additional documents after the final pre- trial conference (PTC) under the Civil Procedure Code, Cap. 33 R.E. 2023 (The Act).
Many practitioners assume the same procedures route applicable after the conclusion of the first PTC; that’s the amendment of scheduling order under order viii rule 23 of the Act, that, continues to apply even after the court has certify the matter for hearing.
However, once a final pre-trial conference has been conducted and the matter is formally confirmed for trial, the procedure changes significantly.
The law does not permit parties to introduce additional document as of right. Instead, both statutory and judicial precedents have clearly established the proper mechanisms to be followed.
In the final pre- trial conference parties are expected to have already filed all intended documents, witness statements where applicable, a list of witness and agreed issues for determination.
As the Act provide under order xiii rule (1) (2) this provision states that all documentary evidence intended to be relied upon must be provided on or before the first pre- trial conference,
The answer is yes but it’s not of right, hence parties cannot use the same procedures that applied before the conclusion of final PTC.
Any additional document after final pre-trial conference, cannot be admitted unless where the court certify with the reason for the delay. This was discussed in the case of Myra Consultancy DWC LCC vs Engineering CSI co. ltd, Commercial case No. 9388 of 2024. the court rejected the email which was filed after the final PTC since it’s against order xiii rule (1) of the Act, and that was filed without court leave.
The parties have to seek court leave by chambers summons supported by an affidavit, showing the reason for the delay. This can also be done through oral application. Then the court upon certification, may grant leave to file the additional documents. This is what should be done and not amending the scheduling order.
This was discussed in the case Akiba commercial bank plc vs Frank Jackson Kasonga $ Majembe auction mart limited Misc. Land Application No 23656 OF 2024. that there is no need to depart from the scheduling order since the party reserve right to file additional documents though it’s after the final pre- trial conference.
The application does not change scheduling order; the party has to seek leave to produce the required documents. In this case the application was granted and the documents where admitted.
All documents must be filled before the first pre- trial conference. This requirement is well explained under order viii of the the Act.
Once the first pre- trial conference (PTC) has been conducted, any party wishes to file additional documents must apply to the court to amend the scheduling order. as provided under order viii rule (23) and the reason to be granted leave.
And after the final pre-trial conference, additional documents may only be admitted upon leave of the court under order xiii rule (1) upon certification of the court for the reason of such delay.
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