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ELRCDismissedCause No 19 of 2019· [2023] KEELRC 2288 (KLR)

Oduori v Twenty Cube Logistics Ltd & another (Cause 19 of 2019) [2023] KEELRC 2288 (KLR)

Employment and Labour Relations Court
28 September 2023
893 words in judgment
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The bottom line

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An employer who skipped trial lost its bid to overturn an adverse employment judgment, because filing documents without testifying proves nothing.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 31/5/2023 seeking a stay of execution and review and/or variation of the Court's judgment of 2/3/2023 in the main employment claim, contending that although it did not attend Court to testify, the Court should have considered its filed Response and supporting documents, particularly on the claim for leave pay. The application was supported by an affidavit of Jude Charles Okeche Advocate. The Claimant opposed it through grounds of opposition dated 10/7/2023, arguing that the application was misconceived, vexatious, an abuse of process, and offended Section 45(1) of the Civil Procedure Act as no new and important matter or error apparent on the face of the record was disclosed. The Court, per Agnes Kitiku Nzei J, invoked Section 16 of the ELRC Act and Rule 33(1) of the ELRC (Procedure) Rules 2016 and held that the Respondent had not satisfied, or even attempted to satisfy, any of the grounds for review. The Court held that a party which fails to call evidence leaves its pleadings and documents as mere unsubstantiated statements of fact, adopting the Trust Bank v Paramount Universal Bank authority. The application was dismissed with costs and the interim stay of execution granted on 19/6/2023 was vacated.

Key legal issues

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01

Review jurisdiction under Section 16 ELRC Act and Rule 33(1) ELRC (Procedure) Rules 2016

Holding

The Respondent failed to establish discovery of new and important matter, any error apparent on the face of the record, need for clarification, or other sufficient reason justifying review

Reasoning

The Court reproduced the Rule 33(1) grounds and held that the Respondent did not satisfy, or even attempt to satisfy, any of them. The Respondent's only argument was that the Court ought to have considered its pleadings and documents despite its non-attendance at trial. The Court rejected this as a basis for review, holding that unproven pleadings cannot displace unchallenged testimony.

p. 3
02

Effect of failure to adduce evidence at trial

Holding

Pleadings and documents filed without viva voce evidence remain mere unsubstantiated statements of fact, and the claimant's evidence stands uncontroverted

Reasoning

The Court endorsed the Trust Bank v Paramount Universal Bank formulation that a party who fails to call evidence fails to substantiate its pleadings, and the opposing party's evidence is uncontroverted. This principle disposed of the Respondent's contention that the judgment was erroneous for ignoring its filed response and documents.

p. 3

Legal principles established

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  • Where a party fails to call evidence in support of its case, its pleadings, witness statements and documents remain mere unsubstantiated statements of fact

Court orders

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  1. 1.The Respondent's Notice of Motion dated 31/5/2023 is dismissed with costs
  2. 2.The interim order of stay of execution granted by the Court on 19/6/2023 is vacated

Authorities

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Legislation

  • Civil Procedure ActSection 45(1)
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 33(1)

Cases cited (1)

  • Trust Bank Limited -vs Paramount Uiversal Bank Limited & 2 Others
    NAIROBI [Milimani] HCCC No. 1243 of 2011
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act read with Rule 33(1) 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, "Oduori v Twenty Cube Logistics Ltd & another (Cause 19 of 2019) [2023] KEELRC 2288 (KLR)", Case Analysis (2023). Cause No 19 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2288/eng@2023-09-28

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