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ELRCOtherCause No. 1 of 2018· [2019] KEELRC 724 (KLR)
Paul Gitari v Board of Management Kanyakine High School [2019] KEELRC 724 (KLR)
Employment & Labour Relations Court of Kenya at Meru
3 October 2019
585 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This interlocutory ruling of the Employment and Labour Relations Court at Meru (Nzioki wa Makau J) determined a defence-side objection on the provenance of evidence. The claimant's counsel, Mr. Mbogo, objected to the respondent's witness testifying where no witness statement or affidavit had been availed. The respondent's counsel, Mr. Kiongo, submitted that the statement of response, drawn from records maintained by the former principal (the witness on the stand), had long been served on the claimant, and invoked Article 159 (prohibition of technicalities) and Article 25 (fair hearing). The claimant conceded receipt of the statement of response but maintained that without a witness statement or affidavit the witness could not testify. The court held that Rule 14(8) of the Employment and Labour Relations Court (Procedure) Rules 2016 obliges a party to notify the court and the other party of witnesses and to file witness statements with the claim or response, and that the absence of a witness statement precluded the testimony. The court reasoned that Article 25 is not abridged by requiring parties to follow procedural rules, that it would be unfair and a travesty of justice to allow the unvouched testimony, and that Article 159 is no panacea for abridgment of procedure. The sworn witness was stood down; the defence, having no other witness, was closed, and parties were to propose timelines for filing final submissions.
Key legal issues
#01
Whether a defence witness without a filed statement or affidavit may testify
Holding
The witness was precluded from testifying and the defence case was closed
Reasoning
Rule 14(8) of the ELRC (Procedure) Rules 2016 requires a party to notify the court and the other party of witnesses and to file witness statements with the statement of claim or response. The respondent conceded serving only a statement of response without a witness statement. The court held that fair hearing under Article 25 is actualized through compliance with such rules, and Article 159's override of technicalities does not excuse non-disclosure of evidence. The sworn witness was stood down, defence case closed.
p. 2
Legal principles established
#- A party who has not filed a witness statement or affidavit may not call that witness to testify; Article 159 does not override mandatory procedural rules on disclosure of evidence
Court orders
#- 1.The witness who was sworn in was stood down as he is not a proper witness and cannot testify
- 2.Since the defence has no witness to offer, its case is closed
- 3.Parties to be invited to propose timelines for filing final submissions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment causes; Employment and Labour Relations Court (Procedure) Rules 2016, Rule 14(8)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Gitari v Board of Management Kanyakine High School [2019] KEELRC 724 (KLR)", Case Analysis (2019). Cause No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/724/eng@2019-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.