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ELRCDismissedCause No E0865 of 2022· [2024] KEELRC 554 (KLR)

Ogola v Sanlam General Insurance Limited (Cause E0865 of 2022) [2024] KEELRC 554 (KLR)

Employment and Labour Relations Court
8 March 2024
SRStella Rutto
2,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused an employee's late bid to summon five witnesses, ruling such requests must come before pretrial, not mid-trial.

What this practically means

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Executive summary

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The Claimant, an employee terminated by the Respondent, moved the Court by Notice of Motion dated 4th October 2023 seeking leave to reopen his case and to summon five witnesses - Matt Gichuki (internal assessors), S.K. Ngugi (Vision Motor Consultant), Fredrick Mutwiri (Elite Automobile & Assessors), George Kuria (CEO General Insurance) and Susan Kakai (Human Resource Manager) - to produce documents in his supplementary bundle and testify on the processes informing his termination. He argued the witnesses were crucial and that the Respondent would suffer no prejudice, citing Kenya Commercial Bank v Ombija, Ladd v Marshall and Mohamed Abdi Mohammud. The Respondent, through its Senior Legal Officer Gladys Muema, opposed, contending the documents were already admitted, the witnesses were its potential witnesses, and the application was mischievous, noting that in unfair termination claims the employer bears the burden of proof (citing Oliver Mukunza v AC Nielsen and Samuel Kiti Lewa). Justice Stella Rutto held that the prayer to reopen the case could not lie since the Claimant's case was not yet closed - he was mid-cross-examination. On the summons, the Court found that Rule 18(2) ELRC (Procedure) Rules, read with Section 20(4) of the ELRC Act, is a case management provision requiring such applications before pretrial; the application came midway through trial and was an afterthought. The documents were already exhibits, and the burden of proving termination under Sections 41, 43, 45 and 47(5) of the Employment Act lay on the employer. The application was disallowed, the matter to proceed to further hearing, with no orders as to costs.

Key legal issues

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01

Whether leave could be granted to reopen the Claimant's case

Holding

The prayer could not be granted because the Claimant's case was not yet closed; he was mid-cross-examination

Reasoning

The court noted the application was filed while the Claimant was still being cross-examined, so there was no closed case to reopen. Reopening is conceptually inapplicable where a party's case remains open. The application was therefore premature and incapable of being granted at that stage.

p. 4
02

Whether the five named persons should be summoned as witnesses

Holding

The application was refused as it was made past the case management stage and the documents were already admitted

Reasoning

Rule 18(2), read with Section 20(4) of the ELRC Act, sits under case management, requiring such applications before pretrial. The application came midway through trial and was an afterthought. The documents sought were already exhibits, so witness production would serve no purpose. Further, the employer bears the statutory burden of justifying termination.

p. 5

Legal principles established

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  • An application under Rule 18(2) ELRC (Procedure) Rules for summoning witnesses is a case management matter to be made before the pretrial conference or at case management stage
  • In an unfair termination claim the employer bears the burden under Sections 41, 43, 45 and 47(5) of the Employment Act to prove reasons for and process of termination, and it is not the employee's concern how the employer discharges that burden

Court orders

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  1. 1.The Application dated 4th October 2023 is found to be without merit and is disallowed
  2. 2.The matter shall proceed for further hearing
  3. 3.There will be no orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 20(4)
  • Employment and Labour Relations Court (Procedure) RulesRule 18(2)
  • Employment ActSections 41, 43, 45 and 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (6)

  • Kenya Commercial Bank Limited v Nicholas Ombija
    (2009) eKLR
  • Ladd v Marshall
    (1954) 3 All ER 745
  • Mohamed Abdi Mohammud v Ahmed Abdullahi Mohamed & 3 others
    (2015) eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Limited & another
    (2015) eKLR
  • Simba Telecom v Karuhanga & Anor
    (2014) UGHC 98
  • Oliver Mukunza v AC Nielsen Kenya Limited
    (2018) eKLR
Jurisdiction invoked
Section 20(4) of the Employment and Labour Relations Court Act; Rule 18(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, "Ogola v Sanlam General Insurance Limited (Cause E0865 of 2022) [2024] KEELRC 554 (KLR)", Case Analysis (2024). Cause No E0865 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/554/eng@2024-03-08

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