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ELRCDismissedNot stated in the judgment· [2013] KEELRC 782 (KLR)

Grace Achieng Ogot v Sukari Co-Operative Savings & Credit Society Ltd [2013] KEELRC 782 (KLR)

Industrial Court of Kenya
20 September 2013
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reopen a closed case for new evidence, confirming that parties must disclose all documents before hearings begin.

What this practically means

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Executive summary

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The respondent/applicant, through chairman Isaac Sumba Sheunda, brought a notice of motion dated 27 June 2013 seeking to set aside the proceedings of 13 May 2013 and re-open the case so that the claimant could be recalled and cross-examined afresh on new documentary evidence (including a signed Human Resource Policy Manual and a Forensic Audit report), to review the court's orders of 12 May 2013 to furnish further and better particulars, and for the court to direct parties to settle out of court. The claimant/respondent opposed, arguing the application was an afterthought, the documents had been doctored, there was no mistake on the face of the record nor discovery of new facts, the matter was res judicata having been rejected orally on 13 May 2013, and re-opening would prejudice her case. The court framed four issues. It held, relying on rule 17(1) of the Industrial Court (Procedure) Rules and the Supreme Court decision in Raila Odinga v IEBC, that re-opening a closed case to introduce fresh evidence was not a procedural technicality and would be prejudicial; the review prayer failed for want of demonstrated grounds; and ADR, though encouraged under section 15(1) of the Industrial Court Act, could not be compelled. The application was accordingly dismissed on its principal prayers, with the court urging settlement and granting leave to appeal.

Key legal issues

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01

Re-opening a closed case to cross-examine on new evidence

Holding

Refused; once the claimant had testified and closed her case, fresh evidence and re-opening could not be allowed as it would be prejudicial

Reasoning

The court noted that rule 17(1) of the Industrial Court (Procedure) Rules requires documents to be served before a case is set down for hearing. The case had not only been set down but hearing had commenced and the claimant had closed her case. Following the Supreme Court in Raila Odinga, the court held fresh evidence at that stage would prejudice the claimant and declined the application.

p. 3
02

Whether review of the court's own orders was available

Holding

Refused; the applicants did not demonstrate the grounds for review

Reasoning

Relying on the Court of Appeal decision in Civil Appeal 230 of 2004 (Eldoret), the court restated the three grounds of review: discovery of new and important matter not within the applicant's knowledge despite due diligence, a mistake or error apparent on the face of the record, or any other sufficient reason. The applicants demonstrated none of these.

p. 3
03

Whether the court can compel parties to settle out of court

Holding

No; ADR is encouraged but cannot be compelled

Reasoning

Section 15(1) of the Industrial Court Act encourages Alternative Dispute Resolution, but submission to that process must be voluntary. The court encouraged the parties to attempt settlement and was willing to stay proceedings for that purpose.

p. 3

Legal principles established

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  • Documents intended to be relied on must be served on the other party before the case is set down for hearing, and a party cannot re-open a closed case to introduce new evidence not previously disclosed
  • Whether or not a decision or order should be reviewed is a matter within the judge's own discretion, exercisable only on demonstrated grounds of new matter, mistake apparent on the record, or sufficient reason
  • Re-opening a case to introduce new evidence is not a mere procedural technicality excusable under Article 159(d) of the Constitution

Court orders

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  1. 1.Re-opening of the claimant's case and introduction of new evidence declined
  2. 2.Prayers for review declined
  3. 3.Parties urged to explore an out-of-court settlement with proceedings stayed for that attempt
  4. 4.Leave to appeal granted and certified copy of the ruling to be supplied as prayed
  5. 5.Hearing set for 8/11/2013 while out-of-court settlement is explored

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(c) and (d)
  • Civil Procedure Rules 2010, Cap 21Order 46
  • Industrial Court Act 2011 (Act No. 20 of 2011)Sections 15(1)(A) and (4), 16, 20(A)
  • Industrial Court (Procedure) Rules 2010Rules 25, 32(1) and 17(1)

Cases cited (2)

  • Raila Odinga & 2 Others VS Independent Electoral & Boundaries Commission & 3 Others
    (2013) eKLR
  • C. A – Civil Appeal 230 of 2004 (C. A at Eldoret)
Jurisdiction invoked
Article 159(2)(c) and (d) of the Constitution of Kenya 2010; Industrial Court Act 2011 Sections 15(1)(A) and (4), 16, 20(A); Rules 25 and 32(1) of the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Grace Achieng Ogot v Sukari Co-Operative Savings & Credit Society Ltd [2013] KEELRC 782 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/782/eng@2013-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.