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ELRCPartially AllowedCause No 1874 of 2017· [2021] KEELRC 173 (KLR)

Samson Maina Kamau v Panari Hotel [2021] KEELRC 173 (KLR)

Employment and Labour Relations Court of Kenya
7 December 2021
3,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that key evidence from a witness who died and a hospitalised witness can still be used at a sexual harassment hearing.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 4th October 2021 by the Respondent/Applicant in a sexual harassment claim before the Employment and Labour Relations Court at Nairobi, seeking admission and adoption of the witness statements of Doris James and the late Edward Stephen Mwiti, together with Mwiti's investigation report, by the Respondent's witness Patrick Marekia. Doris James, the alleged victim, had resigned on medical grounds and was hospitalised; Mwiti, the Human Resource Consultant who investigated the harassment claim and whose report implicated the Claimant, died on 28th August 2021. The Applicant relied on Rule 21 and Rule 28 of the ELRC (Procedure) Rules 2016, Sections 33 and 35(1)(b) of the Evidence Act, and Order 19(1) of the Civil Procedure Rules, supported by the authorities Ngoigwa Company Limited v Dorcas Wanjiku Ikinu and Republic v John Ng'ang'a Njeri. The Claimant opposed, contending that admission without cross-examination would violate his Article 50 right to a fair hearing and amount to introducing evidence through the back door, and that the medical certificate did not prove memory lapse. The Claimant filed no submissions. Dr. Jacob Gakeri, J, applied the three-criteria test in Republic v John Ng'ang'a Njeri and held the case met it. The Court ordered that Mwiti's witness statement and investigation report be adopted by Patrick Marekia, but deferred determination on Doris James's statement pending a doctor's report on her condition by 30th January 2022, and ordered each party to bear their own costs.

Key legal issues

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01

Admissibility of statements of a deceased witness and his investigation report through another witness

Holding

The witness statement of the deceased investigator, Edward Stephen Mwiti, and his investigation report may be adopted by Mr. Patrick Marekia, as any other person could only read the report but not attest to its truthfulness, which is for the Court to weigh

Reasoning

The Court found the report was prepared by the deceased as an independent and neutral investigator, was authenticated on every page though undated and uncontested. Section 35(1)(b) of the Evidence Act removes the requirement to call the maker where he is dead. The Court held that a substitute witness can only read the report; its probative value falls to the Court to assess in the totality of the evidence.

p. 5
02

Whether Doris James's witness statement could be adopted given her alleged incapacity

Holding

The Court found the medical certificate proved hospitalisation but the specific allegations of memory lapse and inability to communicate lacked medical support; determination of her statement's adoption was deferred pending an updated doctor's report

Reasoning

The Aga Khan certificate showed admission from 1st July 2021 with discharge expected 31st December 2021 and extensive rehabilitation thereafter, and her resignation on medical grounds was uncontested. However, the Court accepted the Claimant's point that memory lapse was a mere allegation without medical evidence, so it directed a doctor's report by 30th January 2022.

p. 6
03

Whether adoption of the statements without cross-examination violates the Claimant's right to a fair hearing

Holding

The law provides for admission of statements where a witness is deceased or incapacitated, and the Claimant did not allege actual prejudice; substantive justice required admission of the key evidence

Reasoning

The Court invoked Rule 21 and Rule 28(1)(g) of the ELRC Procedure Rules, Section 33 and 35(1)(b) of the Evidence Act and Order 19(1) of the Civil Procedure Rules, and adopted the three-criteria test in Republic v John Ng'ang'a Njeri, holding the case met those requirements and that courts must balance the parties' interests under the duty to administer substantive justice.

p. 6

Legal principles established

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  • Where a witness is dead or incapable of giving evidence, the condition that the maker of a statement be called as a witness need not be satisfied
  • Statements of unavailable witnesses may be admitted where the witness is unavailable, the statement has sufficient indicia of reliability, and it is admissible via a statutory exception to the hearsay rule or was subjected to cross-examination
  • Disease of the mind or body is a sufficient ground on which the Court may excuse a person from testifying

Court orders

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  1. 1.The witness statement of Edward Stephen Mwiti and the report of the investigation be adopted by Mr. Patrick Marekia
  2. 2.The Applicant/Respondent is directed to file a Doctor's report on the condition of Doris James by 30th January 2022 for the Court to determine whether she will testify or her witness statement should be adopted during the hearing
  3. 3.Parties to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations ActSections 3, 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 21, 18(1)(g), 28(1)
  • Civil Procedure RulesOrder 19(1), Order 19 Rule 2(1), Order 21 Rule 1
  • Civil Procedure Act, Cap 21Sections 1, 1A, 1B, 3, 3A
  • Evidence ActSections 33, 35(1)(b), 125(1)
  • Constitution of KenyaArticle 50; Articles 159(2)(d), 48
  • Mental Health ActNot specified (raised by Claimant in affidavit)

Cases cited (2)

  • Ngoigwa Company Limited v Dorcas Wanjiku Ikinu
    [2018] eKLR
  • Republic v John Ng'ang'a Njeri
    [2018] eKLR
Jurisdiction invoked
Sections 3 and 12 of the Employment and Labour Relations Act, 2011; Rules 21, 18(1)(g) and 28 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Section 35 of the Evidence Act; Order 19(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Samson Maina Kamau v Panari Hotel [2021] KEELRC 173 (KLR)", Case Analysis (2021). Cause No 1874 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/173/eng@2021-12-07

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