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ELRCAllowed· [2021] KEELRC 1136 (KLR)

Nancy Omolo v Mercy Corps [2021] KEELRC 1136 (KLR)

Employment and Labour Relations Court
7 July 2021
NMNzioki wa Makau
357 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that lawyers cannot use re-examination to sneak in new evidence the other side never had a chance to challenge.

What this practically means

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Executive summary

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This short interlocutory ruling of the Employment and Labour Relations Court at Nairobi, delivered by Nzioki wa Makau J on 7 July 2021, resolves an objection taken during the hearing of a claim. The Respondent's Counsel, Miss Mwango, in re-examining a witness sought to question the witness on the context of certain emails. The Claimant's Advocate, Mr. Odhiambo, objected, pointing out that in cross-examination he had asked only about the source of the emails, not their context, and that he would have no opportunity to cross-examine on the new contextual evidence being led. The Respondent's Counsel maintained that her questions arose from matters referred to in cross-examination and were therefore within the permissible scope of re-examination. The court agreed with the Claimant. It held that re-examination is confined to questions arising out of cross-examination, and that the rules of fair hearing forbid a party from opening new lines of questioning that would leave the opposing side unable to counter or rebut by cross-examination. Finding that the Respondent's Counsel was in effect reopening the examination of the witness, the court upheld the objection and directed that re-examination be limited to areas covered in cross-examination and only to the extent that the questions clarify an issue, reiterating that re-examination is not an examination-in-chief. No costs order was made in the ruling.

Key legal issues

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01

Scope of re-examination of a witness

Holding

Re-examination is limited to questions arising in cross-examination and clarification of issues; it is not an opportunity to reopen examination-in-chief or introduce new matters.

Reasoning

The court held that during re-examination a party is limited to matters arising out of cross-examination. Allowing counsel to explore the context of emails never raised in cross-examination would open a new line of evidence which the Claimant's Advocate could not rebut, since his questions had gone only to the source of the emails. Such a course would offend fair-hearing principles, and the objection was accordingly upheld with directions limiting the questioning.

p. 2

Legal principles established

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  • Re-examination is confined to questions arising from cross-examination; a party may not open new lines of questioning that would deprive the opposing party of the opportunity to cross-examine.

Court orders

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  1. 1.Objection upheld
  2. 2.Questions on re-examination limited only to areas covered in cross-examination and only where they clarify an issue
Jurisdiction invoked
Inherent authority of the court to regulate the conduct of hearings and examination of witnesses

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, "Nancy Omolo v Mercy Corps [2021] KEELRC 1136 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1136/eng@2021-07-07

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