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ELRCDismissedCause No 1251 of 2017· [2021] KEELRC 705 (KLR)

Abigael Jane Ayako v Masai Mara Sopa Lodge Limited [2021] KEELRC 705 (KLR)

Employment and Labour Relations Court
7 October 2021
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused an employer's late attempt to add new email evidence, stressing parties must gather all documents before hearings start.

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 (Nzioki Wa Makau, Judge) delivered on 7th October 2021 in a part-heard employment dispute. The Respondent/Applicant, by Notice of Motion dated 29th July 2021, sought leave to file a supplementary bundle containing an email dated 26th March 2015 allegedly written by the Claimant communicating the management's decision on salary cuts, and to recall the Claimant to testify or comment on it. The Respondent, through affidavits of Andreas Vogt, explained the late production as an oversight by its then HR Assistant, Mr. Cosmas Tialal, who failed to retrieve the email from the general personnel file. The Claimant opposed the motion, arguing the Respondent bore a statutory duty to keep employment records, had not explained four years of inaction, and that admitting the email after her testimony would prejudice her right to a fair hearing and merely fill gaps exposed in the Respondent's defence. The court placed the burden on the Respondent to show the evidence could not have been obtained with reasonable diligence and found the explanation unconvincing, noting emails exist online rather than in physical files. The motion was dismissed with costs to the Claimant, the annexure AV1 was expunged from the record as of doubtful provenance, and directions for the further hearing of the part-heard matter were reserved.

Key legal issues

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01

Whether the email could have been obtained with reasonable diligence before hearing

Holding

The Respondent failed to prove lack of reasonable diligence; the explanation of an oversight in checking files was unconvincing given that emails exist online and not in physical files

Reasoning

The court placed the burden on the Respondent to show the email could not have been obtained with reasonable diligence. The Respondent explained the omission as an oversight by its HR Assistant who failed to retrieve the document from the general personnel file. The court found this unconvincing because emails exist online on the service provider's server rather than in physical files, so there was no basis for the grant of the motion.

p. 2
02

Whether admitting the email would prejudice the Claimant's fair hearing rights

Holding

The application was found to be an attempt to fill gaps in the Respondent's defence exposed in cross-examination, and the email was of doubtful provenance

Reasoning

The Claimant argued she had no opportunity to prepare for or address the email's contents when she testified, and that the motion sought to fill gaps in the Respondent's case. The court agreed the application lacked merit, and went further to expunge the annexure as of doubtful provenance, implicitly accepting the prejudice and integrity concerns raised.

p. 2

Legal principles established

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  • A party seeking to adduce additional evidence after the close of its case bears the burden of proving the evidence could not have been obtained with reasonable diligence at the time of hearing
  • Evidence of doubtful provenance may be expunged from the record

Court orders

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  1. 1.The Respondent's Notice of Motion dated 29th July 2021 was dismissed with costs to the Claimant
  2. 2.The annexure AV1 (the email dated 26th March 2015) was expunged from the Court record as it is of doubtful provenance
  3. 3.Directions as to the further hearing of the part-heard matter to be given immediately upon delivery of the Ruling

Authorities

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Legislation

  • Evidence ActSection 146

Cases cited (5)

  • Victoria Naiyanoi Kiminta v Gladys Prinsloo
    [2019] eKLR
  • Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & Another
    [2019] eKLR
  • Talewa Road Contractors Limited v Kenya National Highways Authority
    [2019] eKLR
  • State v Hepple
    279 Md. 265, 368 A.2d 445 (Md. 1977)
  • Raindrops Limited v County Government of Kilifi
    [2020] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to receive additional evidence and recall witnesses (Section 146 of the Evidence Act as invoked by the parties)

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, "Abigael Jane Ayako v Masai Mara Sopa Lodge Limited [2021] KEELRC 705 (KLR)", Case Analysis (2021). Cause No 1251 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/705/eng@2021-10-07

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