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ELRCOtherNot stated in the judgment extract· [2015] KEELRC 1503 (KLR)

John Kimani Mwega v Central Bank of Kenya & another [2015] KEELRC 1503 (KLR)

Industrial Court of Kenya
29 January 2015
MNMathews N. Nduma
1,164 words in judgment
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The bottom line

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A Kenyan employment court confirmed that a claimant who chooses not to testify cannot be forced to face cross-examination.

What this practically means

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Executive summary

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The Industrial Court dealt with a procedural question at trial: whether a claimant who elected to rely solely on his memorandum of claim and documentary evidence, and declined to give oral testimony, could be compelled by the respondent to submit to cross examination. The respondent invoked Article 50(1) of the Constitution (fair hearing), Article 159(2)(d) (justice without undue regard to procedural technicalities) and authorities including Republic v Registrar of Companies Exparte Manchester Out Fitters, Ferdinard Ndungu Waititu v IEBC (citing Bhandari v Gantana), and Emilio Delapaz, arguing the right of cross examination is inviolable in civil cases. The claimant relied on Rule 24(3) of the Industrial Court (Procedure) Rules 2010, contending his case was closed, cross examination presupposes examination-in-chief, and the employment dispute was fully governed by documents. The court noted all the respondent's authorities concerned parties or witnesses who had actually testified, none the situation of a party opting not to testify at all. It held the claimant's case stands or falls on the pleadings and documents, that the claimant has a right to refuse to testify, and that the respondent had laid no sound basis for compelling cross examination of the verifying affidavit, which merely confirmed the memorandum of claim. No prejudice would befall the respondent, who remains free to present its defence and call its own witnesses. The court declined to compel the claimant to be cross examined and made no order as to costs, reserving costs to the cause.

Key legal issues

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01

Whether a claimant who elects not to testify in chief may be compelled to submit to cross examination

Holding

The claimant cannot be compelled; cross examination presupposes testimony in chief, and the Respondent suffered no prejudice and laid no basis for the discretionary order

Reasoning

The court surveyed the authorities relied on by the Respondent, all of which concerned parties or witnesses who had testified. It held the claimant's case stands or falls on the statement of claim and documents; the verifying affidavit merely confirms the memorandum of claim and documents, so no oral testimony exists to test. The Respondent can still call its own witnesses, so no prejudice arises. Discretion to compel cross examination was therefore not triggered.

p. 3

Legal principles established

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  • A party in a civil case cannot be compelled to be cross examined where he has not testified in chief and has elected to rely on documentary evidence
  • The right to cross examination attaches to a party or witness who has testified; it does not arise where no testimony in chief has been given

Court orders

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  1. 1.The Court declines to compel the Claimant, who has not testified in chief, to be cross examined by the Respondent
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 1(2)
  • Industrial Court (Procedure) Rules 2010Rule 24(3)

Cases cited (6)

  • Republic Vs. Registrar of Companies Exparte Manchester Out Fitters Limited
    Misc. Civil Application No. 115 of 2007 (2011) eKLR
  • Ferdinard Ndungu Waititu Vs. Independent Electoral & Boundaries Commission, IEBC & 8 others
    Civil Application No. 137 of 2013 (CR 94 of 2013)
  • Emilio Delapaz, JR and others Vs. Hon. Intermediate Appellate Court, Adelaidas Trinidad, Corado P. S Antos and others
  • Bhandari Vs. Gantana
    (1964) E.A. 6606 at 6609
  • Nicholas Kiptoo Salat Vs. Independent Electoral and Boundaries Commission and 7 others
    2013 eKLR
  • Hudso Enterprises Ltd. Vs. Kenya Cold Storage (goods) & 14 others
    [2001] eKLR
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010; civil trial jurisdiction of the Industrial Court (specific enabling provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Kimani Mwega v Central Bank of Kenya & another [2015] KEELRC 1503 (KLR)", Case Analysis (2015). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1503/eng@2015-01-29

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