Abigael Jane Ayako v Masai Mara Sopa Lodge Limited [2021] KEELRC 705 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the email could have been obtained with reasonable diligence before hearing
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
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.
Whether admitting the email would prejudice the Claimant's fair hearing rights
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
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.
Legal principles established
#- 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
#- 1.The Respondent's Notice of Motion dated 29th July 2021 was dismissed with costs to the Claimant
- 2.The annexure AV1 (the email dated 26th March 2015) was expunged from the Court record as it is of doubtful provenance
- 3.Directions as to the further hearing of the part-heard matter to be given immediately upon delivery of the Ruling
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.