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ELRCOtherCause No. 1 of 2018· [2019] KEELRC 718 (KLR)

Paul Gitari v Board of Management Kanyakine High School [2019] KEELRC 718 (KLR)

Employment & Labour Relations Court of Kenya
3 October 2019
NMNzioki wa Makau
510 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 ruled that documents handed to someone known to a lawyer count as valid service, and objections to service must genuinely hold up.

What this practically means

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Executive summary

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This is an interlocutory ruling in an employment cause before the Employment & Labour Relations Court at Meru, in which the Claimant's Advocate, Mr. Mbogo, objected to documents filed by the Respondent on 30th January 2019 on the ground that they were never served on him. The Respondent's Advocate, Mr. Kiongo, asserted that the documents, comprising the defence, list of exhibits and statements, were served on the clerk of the Claimant's Advocate on 31st January 2019 and acknowledged on his principal copies. Mr. Mbogo replied that the person who received the documents, though known to him and his brother-in-law, was not his employee or clerk but an auctioneer working in Meru operating from Maua, and that while he received the defence, he did not receive the filed bundle including the witness statement. Considering the provenance of the documents and the fact that both acknowledgements were signed by the same hand on the same date, the court found it doubtful that the statement filed was excluded from the documents handed over. It reasoned it would be curious for the Claimant's Advocate to permit the Respondent to hold out a witness in court without any statement to proffer if he truly had no sight of the statement. The objection was overruled as lacking merit, the case was directed to proceed, and the Claimant's advocate was permitted to procure copies of the lists to assist in questioning the defence witness.

Key legal issues

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01

Whether service of the Respondent's documents on a person known to the Claimant's Advocate (his brother-in-law, an auctioneer not employed by him) constituted valid service

Holding

The objection was overruled; the court found it doubtful that the statement filed was excluded from the documents passed over, and held the Claimant should have an opportunity to prepare.

Reasoning

Both the acknowledgement and the documents were signed by the same hand on the same date. The court reasoned that if the Advocate had no sight of the statement, it was curious he would permit the Respondent to hold out a witness in court with no statement to proffer. Fairness required the Claimant have at least an opportunity to prepare to question the defence witness, and the Claimant's advocate could procure copies of the lists.

p. 2

Legal principles established

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  • Where a party permits the other side to hold out a witness in court without a statement having been served, the court will doubt the assertion that the statement was excluded from service

Court orders

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  1. 1.Objection overruled as it lacks merit
  2. 2.Case to proceed
  3. 3.The advocate for the Claimant may procure the lists of copies if he is so minded to help him question the defence witness whose testimony will follow Claimant's
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment cause (Cause No. 1 of 2018)

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, "Paul Gitari v Board of Management Kanyakine High School [2019] KEELRC 718 (KLR)", Case Analysis (2019). Cause No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/718/eng@2019-10-03

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