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ELRCPartially AllowedNot stated in the judgment (Notice of Motion dated 25.9.2020 in a claim in which judgment was entered on 15.3.2019)· [2020] KEELRC 290 (KLR)

Clarice Odhiambo v Coca-Cola Company & 2 others [2020] KEELRC 290 (KLR)

Employment and Labour Relations Court
29 October 2020
OMOnesmus N Makau
1,773 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 allowed a worker to file new evidence late because it was genuinely new to her, but she paid the costs for the delay.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onesmus N Makau J) delivered on 29 October 2020 on the claimant's Notice of Motion dated 25.9.2020. The motion sought leave to admit a Further Affidavit sworn on 15.9.2020 as part of her evidence in opposition to the 3rd respondent's application for stay of execution of the court's judgment of 15.3.2019, pending the respondent's intended appeal. The claimant argued that the affidavit contained new evidence – funds withdrawn from her provident fund contributions in 2007 without her knowledge, plus unclaimed pension of over Kshs.22 million – demonstrating she was a person of means capable of repaying the decreed sum. The 3rd respondent opposed, contending inter alia that the court lacked jurisdiction over provident fund disputes, the evidence was not new or relevant to stay, the records were untraceable after 13 years, and the threshold for arresting a ruling and reopening a hearing had not been met. The court framed the sole issue as whether the claimant met the legal threshold for reopening the hearing and admitting new evidence. Applying Rule 26(2) of the ELRC Procedure Rules 2016 and the authorities in Samuel Kiti Lewa, Smith v New South Wales, Gateway Insurance and Shah v Mbogo, the court found the evidence was genuinely new, the application was made without unreasonable delay, and no incurable prejudice would result. The court admitted the Further Affidavit, granted the respondent leave to file a further affidavit in response, and ordered the claimant to pay the 3rd respondent's costs of the application.

Key legal issues

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Whether the claimant met the legal threshold for reopening the hearing of the stay application and admitting new evidence

Holding

Yes. The evidence was new, not within the claimant's knowledge or possession at the hearing, the application was made without unreasonable delay, and no prejudice incapable of cure by costs would befall the respondent.

Reasoning

The court applied Rule 26(2) of the ELRC Procedure Rules 2016 and the authorities of Kasango J in Samuel Kiti Lewa, Smith v New South Wales and Odunga J in Gateway Insurance. It found the failure to adduce the evidence at the hearing was not deliberate, that the claimant acted promptly after receiving the evidence on 24.8.2020, and that any prejudice could be remedied by costs and by granting the respondent leave to file a further affidavit.

p. 3

Legal principles established

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  • The court shall not reopen a hearing unless, for sufficient reason, it considers it fit to do so.
  • The discretion to reopen a case must be exercised judiciously, ensuring no embarrassment or prejudice to the opposite party, and should be refused where it merely fills gaps in evidence or is defeated by inordinate and unexplained delay.
  • Where reopening is sought on the basis of new evidence, it is relevant to inquire why the evidence was not called at the hearing.
  • The power to arrest a decision is to be invoked sparingly and in exceptional circumstances, and not to assist a party who has deliberately obstructed or delayed the course of justice.

Court orders

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  1. 1.Admission of the claimant's Further Affidavit sworn on 15.9.2020 for consideration in determining the 3rd respondent's application for stay of execution dated 10.12.2019
  2. 2.Leave granted to the 3rd respondent to file any further affidavit, if necessary, to respond to issues raised by the claimant's Further Affidavit
  3. 3.Claimant to pay the 3rd respondent's costs of the instant application

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 26(2)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28(3)
  • Provident Fund Scheme rulesRule 14.3
  • CBK Regulationsrecord-keeping provision (records kept for 7 years)

Cases cited (5)

  • Albert Chaurembo Mumba & 7 others v Kenya Ports Authority
    [2019] eKLR
  • Gateway Insurance Company Limited v Jimmy Kiamba, Treasurer Nairobi County Government & 2 others
    [2016] eKLR
  • Samuel Kiti Lewa v Housing Finance Company of Kenya LTD
    [2015] eKLR
  • Smith v New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
  • Shah v Mbogo
    [1979] EA 116
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the suit; application governed by Rule 26(2) of the ELRC Procedure Rules 2016

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, "Clarice Odhiambo v Coca-Cola Company & 2 others [2020] KEELRC 290 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 25.9.2020 in a claim in which judgment was entered on 15.3.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/290/eng@2020-10-29

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