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ELRCDismissedCause No E1012 of 2021· [2023] KEELRC 2505 (KLR)

Walji v Roofings Kenya Limited (Cause E1012 of 2021) [2023] KEELRC 2505 (KLR)

Employment and Labour Relations Court
3 October 2023
NMNzioki Wa Makau
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi employment court refused an employer's late attempt to add evidence, ruling that ignoring court timelines and hiding an application forfeits the right to any leniency.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Nzioki Wa Makau J) delivered on October 3, 2023 on the respondent's application dated June 12, 2023. The respondent sought leave to adduce additional evidence - its Stafi attendance report - after the claimant and the respondent's first witness had already testified, together with an order deeming its Further List of Documents as duly filed. The respondent explained that former witnesses, including the former Human Resource Manager, had left the organization, and the omission was only discovered by incoming witnesses during getting up. The claimant opposed, deponing that the application was served late, that the respondent had been aware of the documents in 2022, had already been granted leave to file additional documents on several occasions without compliance, and that the application was a surreptitious attempt to amend the defence and delay the matter. The respondent relied on article 159(2)(d) and authorities including Joseph Ndungu Kamau v John Njihia, urging that justice be done without undue regard to technicalities. The court applied Kiage JA's pronouncement in Nicholas Kiptoo Arap Korir Salat v IEBC on the limits of the oxygen principle, found the respondent had squandered four prior opportunities to file the documents and had clandestinely concealed the application, amounting to sharp practice. The application was dismissed with costs to the claimant on the higher scale, with further hearing directions to follow.

Key legal issues

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01

Whether leave to adduce additional evidence after the claimant's case was heard should be granted

Holding

The application was dismissed; the discretion, though wide, was refused because the respondent had squandered four earlier opportunities to file the documents and had concealed the application from the claimant and the court

Reasoning

The court traced the procedural history: the respondent had four separate opportunities to file documents - on service of the claim, on June 9, 2022, September 14, 2022 and October 31, 2022 - and complied with none. The respondent was dilatory, appeared to be waiting to hear the claimant's case before moving, and the concealment of the application was sharp practice. Technicalities aside, the conduct disentitled the respondent to the indulgence sought.

p. 3
02

The limits of article 159(2)(d) as an engine for admitting late evidence

Holding

Procedural rules and timelines serve fairness and certainty; the oxygen principle cannot be invoked to bend rules or shift goal posts

Reasoning

The court adopted Kiage JA's exposition in Nicholas Kiptoo Arap Korir Salat v IEBC, that article 159 and the oxygen principles were never meant to create an anarchical free-for-all or to aid parties who exhibit scant respect for rules, since rules and timelines make adjudication fair, just, certain and even-handed. The discretion is wide and unfettered but must be exercised even-handedly.

p. 3

Legal principles established

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  • Article 159(2)(d) and the oxygen principles cannot be used to overthrow rules of procedure or to excuse parties who disregard rules and timelines
  • Non-disclosure to the other party and to the court of a pending application before a hearing, and seeking documents after hearing the opponent's case, amounts to sharp practice that disentitles a party to leave

Court orders

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  1. 1.The respondent's application dated June 12, 2023 seeking leave to adduce additional evidence (the Stafi attendance report) was dismissed
  2. 2.Costs awarded to the claimant, to be on the higher scale
  3. 3.Directions on further hearing to follow delivery of the Ruling

Authorities

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Legislation

  • Constitution of Kenyaarticle 159(2)(d)

Cases cited (4)

  • Joseph Ndungu Kamau v John Njihia
    [2017] eKLR
  • David Muthami v Estate of James Titus Wambua & 4 others
    [2022] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
Jurisdiction invoked
Inherent discretion of the court and article 159(2)(d) of the Constitution as invoked by the respondent

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, "Walji v Roofings Kenya Limited (Cause E1012 of 2021) [2023] KEELRC 2505 (KLR)", Case Analysis (2023). Cause No E1012 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2505/eng@2023-10-03

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