Nyaga & 78 others v Barclays Bank of Kenya Limited (Cause 1122 of 2018) [2023] KEELRC 1297 (KLR)
The bottom line
#A Kenyan employment court ruled that 79 employees suing together do not each need to testify — five witnesses can represent them all, but late changes to the case were rejected.
What this practically means
#Executive summary
#Key legal issues
#Amendment of pleadings at a late stage of trial
Leave to amend declined; the amendments were belated, unnecessary and would result in over-pleading.
The Court held the existing Statement of Claim comprehensively pleaded the alleged violations, including lack of consultation, non-disclosure, interest rates and credit card cancellation under Article 28. Some amendments were redundant (Notice of Change of Advocates on record; commercial rates already suspended by order of Abuodha Jorum Nelson J). Evidence had already been recorded from three Claimants on the very matters sought to be amended, risking prejudice.
Number of Claimants to give oral evidence in a collective claim
Claimants permitted to call the 5 named witnesses as their last witnesses and close their case; not all 79 need testify.
Applying Rule 9 and Rule 38 of the E&LRC Procedure Rules, the Court found three Claimants' evidence reflected the common position of all 79 Claimants. Requiring all remaining 76 to testify would gravely delay justice under Article 159(2) and derail industrial justice in collective disputes such as mass redundancies.
Adoption of witness statements without calling makers
Refused; witness statements of Claimants not giving oral evidence cannot form part of Rule 21 documentation.
Rule 21 permits determination on Pleadings, Affidavits, Documents and Submissions; witness statements under Rule 14(8) are for witnesses proposed to be called. Witness statements replicate verified pleadings, so the Court may determine remaining claims on the pleadings, affidavits, documents and submissions, but not on witness statements of non-testifying Claimants.
Legal principles established
#- There is no requirement that every person named as a Claimant gives oral evidence in collective claims; the Court may limit the number of witnesses and determine remaining claims on the documents under Rule 21.
- Amendments to pleadings after hearing has opened, which add nothing necessary to the just determination of the dispute, should be declined.
Court orders
#- 1.Leave to amend the Statement of Claim is declined
- 2.The Claimants shall call the last 5 Claimants identified in their Application, and close their case
- 3.The Claims by the Claimants who will not give oral evidence shall be considered and determined under Rule 21 of the E&LRC (Procedure) Rules, 2016
- 4.No additional documents, filed after the hearing opened, shall be admitted as evidence
- 5.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12; E&LRC (Procedure) Rules, 2016 (Rules 9, 14, 21, 38)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga & 78 others v Barclays Bank of Kenya Limited (Cause 1122 of 2018) [2023] KEELRC 1297 (KLR)", Case Analysis (2023). Not stated in the extract (Claim filed July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1297/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.