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ELRCPartially AllowedCause No 838 of 2015· [2022] KEELRC 218 (KLR)

Julius Nyagwoka v Tata Arica Holdings Kenya Limited [2022] KEELRC 218 (KLR)

Employment and Labour Relations Court
20 April 2022
2,639 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 can reopen a closed case to admit new evidence when there's sufficient reason, no unfair advantage, and no real prejudice to the other side.

What this practically means

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Executive summary

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By a notice of motion dated 21st January 2022, the Claimant/Applicant sought leave to reopen his closed case to call an additional witness, Stephen Suswa Marwa, a former employee of the Respondent, to produce a letter dated 15th August 2015 showing that the Respondent's normal commission payable to its employees was 1% of sales. The Claimant deponed that the letter corroborated his testimony that he was entitled to a 1% industry-minimum commission, evidence he said was unavailable when his case closed on 10th November 2021. The Respondent filed a preliminary objection contending the application was bad in law, an abuse of process and prejudicial, since the proposed witness's identity, contract and designation differed from the Claimant's and the evidence could have been obtained with reasonable diligence. The Respondent relied on Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act. The Court identified a single issue: whether it should exercise its discretion in favour of the Claimant. It held that the preliminary objection raised no point of law, and that Rule 26(2) of the ELRC (Procedure) Rules, 2016 confers discretion to reopen for sufficient reason. Applying Samuel Kiti Lewa and Mohamed Abdi Mahamud, the Court accepted that reopening must not fill gaps in evidence, but found no material substantiating deliberate withholding by the Claimant, and no prejudice since the Respondent could cross-examine the witness and adduce rebuttal evidence. The application was granted in terms of prayer 2, with the Claimant to file and serve a witness statement within seven days and costs in the cause.

Key legal issues

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01

Jurisdiction to reopen a partly-heard case under Rule 26(2) of the ELRC (Procedure) Rules, 2016

Holding

The Court has jurisdiction to reopen the Claimant's case where sufficient reason exists, even where only the Claimant's case has closed and the Respondent is yet to testify

Reasoning

Rule 26(2) permits reopening of a hearing for sufficient reason. Although sub-Rule (2) appears to address reopening of the entire case after closure of the hearing, the Court applied similar logic to closure of the Claimant's case, holding that reopening discretion must be exercised judiciously to facilitate the administration of justice. The preliminary objection disclosed no point of law and prejudice was unsubstantiated.

p. 3
02

Whether the application sought to fill gaps in evidence and would prejudice the Respondent

Holding

The interests of justice favoured allowing the additional witness; no material showed deliberate withholding of evidence, and the Respondent could cross-examine and adduce rebuttal evidence

Reasoning

The decisions cited establish that reopening should not be used to fill gaps in evidence. However, the Respondent provided no material substantiating its claim of deliberate withholding of evidence. The Respondent would have the opportunity to cross-examine the new witness and adduce further evidence, and the proposed evidence was a mere letter, not voluminous, so no prejudice arose.

p. 4
03

The validity of the preliminary objection

Holding

The preliminary objection raised no point of law

Reasoning

The Court observed at the outset of its analysis that the preliminary objection, which asserted that the application was an abuse of process and against public policy, did not raise a point of law in the Mukisa Biscuits sense. The Court nonetheless went on to determine the application on its merits and exercised discretion in favour of the Claimant.

p. 2

Legal principles established

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  • The ELRC has discretion to reopen a case where there is sufficient reason, and that discretion must be exercised judiciously to facilitate the administration of justice
  • Re-opening of a case should not be allowed where it is intended to fill gaps in evidence, and the court must ensure the opposite party is not embarrassed or prejudiced

Court orders

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  1. 1.Leave granted to the Claimant to reopen the Claimant's case limited to calling an additional witness, Stephen Suswa Marwa, to produce the letter dated 15th August 2015 (granted in terms of prayer no. 2)
  2. 2.The Claimant/Applicant to file and serve witness statement within seven days
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 162
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 172
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 26(1) and 26(2)
  • Civil Procedure RulesOrder 18 Rule 10
  • Civil Procedure RulesOrder 21 Rule 1
  • Evidence ActSection 146(4)
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Shami Deshpal Wadhwa v Habib Abu Mohamed & 4 others
    [2020] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Odoyo Osodo v Rael Obara Ojuok & 4 others
    [2017] eKLR
  • Mogas Kenya Limited v Spin Masters Limited & another
    [2018] eKLR
  • Hannah Wairimu Ngethe v Francis Mungai Ng'ang'a & another
    [2016] eKLR
  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party)
    [2019] eKLR
  • Smith v New South Water
    [1992] 176 CLR 256
Jurisdiction invoked
Articles 48 and 162 of the Constitution of Kenya, 2010; Section 3 of the Employment and Labour Relations Court Act, 2011; Rule 26(2) of the Employment and Labour Relations Court (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, "Julius Nyagwoka v Tata Arica Holdings Kenya Limited [2022] KEELRC 218 (KLR)", Case Analysis (2022). Cause No 838 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/218/eng@2022-04-20

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