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ELRCDismissedCause No E662 of 2020· [2022] KEELRC 778 (KLR)

Alfred Baya Msanzu v Kenya Ports Authority [2022] KEELRC 778 (KLR)

Employment and Labour Relations Court of Kenya
9 February 2022
ANAGNES KITIKU NZEI
1,860 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, J) determines a Notice of Motion dated 21st January 2022 filed by the Respondent mid-trial, after the Claimant had testified and closed his case on 19th January 2022. The Respondent sought leave to file a supplementary list of documents introducing a payment slip evidencing two months' salary in lieu of notice allegedly paid to the Claimant after his retirement on 6th September 2019. The Claimant opposed, contending the application was an afterthought, that the Respondent had over a year and several mentions to file the document, and that he never received any post-retirement payment. The court held that parties are masters of their cases but that litigation is not an endless journey; the Respondent had been given repeated opportunities at pre-trial directions and on 8th November 2021 to file further documents and failed to exercise due diligence, the document having always been in its possession. Admitting the disputed document at that stage would deny the Claimant, who had already testified, been cross-examined and re-examined, an opportunity to question its contents, condemning him unheard. Applying the Court of Appeal authorities on the right to be heard, the court noted the Respondent still had its full defence hearing ahead and would have its day in court. The application was dismissed with costs to the Claimant and the defence hearing ordered to proceed as scheduled on 9th February 2022.

Key legal issues

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01

Whether the court should exercise its discretion under Rule 38 to permit late filing of a document after closure of the Claimant's case

Holding

The discretion was refused. The Respondent had multiple opportunities during pre-trial directions and on 8th November 2021 to file further documents and did not; the document was always in its possession and is disputed by the Claimant.

Reasoning

The court noted that the Respondent had been given repeated chances to comply with pre-trial directions and that on 8th November 2021 it gave no indication it had further documents. The document was in the Respondent's own custody, so the delay showed a failure of due diligence. Admitting it after the Claimant had testified, been cross-examined and re-examined would deny him any opportunity to question its contents, condemning him unheard. The Respondent still had its full defence hearing ahead.

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02

Whether the Claimant would suffer prejudice if the orders were granted

Holding

Yes - the Claimant would be prejudiced and condemned unheard as regards the disputed document.

Reasoning

The court reasoned that because the Claimant's case was already closed, allowing a disputed payment slip at that stage would prevent the Claimant from testing its contents and validity in evidence. The Court of Appeal authorities on the right to be heard favour the Claimant, whose case stands closed, over the Respondent, whose case had not yet opened.

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03

Whether the delay in producing the document was excusable

Holding

No tenable or valid reason was given for not filing the document earlier.

Reasoning

The affidavit itself disclosed that the payment was processed in February 2020 and that the document was obtained from the Respondent's finance department; the discovery was said to have occurred while preparing for the January 2022 hearing. The court found this insufficient, given the many mentions and directions at which the document could have been filed.

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Legal principles established

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  • Parties are bound by the procedural timetable; filing of pleadings and evidence is not an endless journey and is regulated by the court and rules of procedure.
  • A party who fails to exercise due diligence cannot introduce a document already in its custody after the opposing party has testified, where such admission would deny the other side an opportunity to challenge it.
  • The right to be heard is a valued right; no party should be prejudiced without an opportunity to be heard.

Court orders

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  1. 1.The Respondent's Notice of Motion dated 21st January 2022 is dismissed with costs to the Claimant
  2. 2.Defence hearing to proceed as scheduled on 9th February 2022

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 15
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 38

Cases cited (1)

  • KIAI MBAKI & 2 OTHERS –VS- GICHUHI MACHARIA & ANOTHER
    [2005] eKLR
Jurisdiction invoked
Rule 38 of the Employment and Labour Relations Court (Procedure) Rules, 2016 - 'subject to these rules, the Court may regulate its procedure'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Alfred Baya Msanzu v Kenya Ports Authority [2022] KEELRC 778 (KLR)", Case Analysis (2022). Cause No E662 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/778/eng@2022-02-09

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