134. From the foregoing, we conclude the issues complained of were pleaded by the parties and were responded
to by the Ex parte Applicant as well as the Procuring Entity. Even going by the case ofOdds Jobs (supra), if
the issues had not been specifically pleaded, they arose in the course of proceedings and were canvassed
by the parties. They were, therefore, properly before the Board for determination. Consequently, the framing
of issues by the Respondent for determination upon those matters raised in the pleadings and in the trial
was in order. Similarly, we wish to state that the adequacy of a party’s response to an issue is determined
by the party making the response, and is incumbent upon such party to apply for more time to make more
elaborate response if he so desires. It is undesired of the law that the tribunal or court should pronounce
that a party’s pleadings contains adequate material before close of pleadings unless it descends to the
arena to assist the parties plead their respective cases: certainly it will be engulfed in the dust blown out of
the litigants’ positioning themselves in the duel. The work of the tribunal is to allow parties sufficient time to
plead their cases, but of course, within the bounds of the applicable law on the matter.
As was held
in Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998:
“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at
the record before the court, the court is not impressed by the point that the applicant was denied the right to defend
itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of
these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not
convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the
appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a
reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on
which the party not utilising the opportunity can be heard is why he did not utilise it.”
135. In view of the time limitation for review by the Respondent in Section 92 of the Act, it is not true that the Ex
parte Applicant and the 1st Interested Party were not afforded an opportunity or sufficient time to rebut the
issues in contention herein. They were served with the requests and the necessary documents to which
they responded; they also canvassed the issues and submitted on them. At this juncture we must point out
that a party who deliberately makes submissions in doses will not be allowed to rely on its own omission as
a basis for further challenge of the decision of the Tribunal in any subsequent proceeding including judicial
review unless it can show that the matter consists in a discovery of new and important matter which, after
the exercise of due diligence, was not within his knowledge at the time of the primary submissions before the
Tribunal. And in such rare cases, the stringent test for new or additional evidence will apply. That is not the
case here as all the things the Ex parte Applicant and the 1 stInterested Party are talking about were already
before the tribunal and nothing stopped them from making what they are calling elaborate submissions.
136. As was held in Gurbachan Singh Kalsi vs. Yowani Ekori Civil Appeal No. 62 of 1958, [1958] EA 450:
“Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction,
the court requires the parties to that litigation to bring forward their whole case, and will not, except under special
circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have
been brought forward as part of the subject in contest, but which was not brought forward, only because they have,
from negligence, inadvertence, or even accident, omitted part of their case.”
137. We also note that in the course of the hearing, the Review Board sought to know whether there was any
objection to the Request for Review and all the parties indicated none had any objection even to the Board