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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 608 (KLR)

Musee v International School of Kenya Ltd (Cause 60 of 2020) [2024] KEELRC 608 (KLR)

Employment and Labour Relations Court
18 March 2024
2,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed a teacher to add new evidence mid-trial, confirming that fair hearing rights outweigh strict pre-trial timelines.

What this practically means

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 23rd November, 2023 seeking leave to adduce further additional evidence - a Further Supplementary Witness Statement, an additional witness statement of Patriciah Newmyer, and a further supplementary list of documents - in a discrimination suit alleging that the Respondent grossed up salaries for overseas-hired teachers but not Kenyan locally hired teachers, contrary to equal pay for equal work. The Respondent opposed, describing the application as a delaying tactic and arguing that the proposed evidence concerned the 2021-2022 grossing-up period, whereas the suit concerned 2014-2019, and that grossing up followed the Tax Appeals Tribunal's 8th May, 2021 decision and could not apply retrospectively. The Respondent relied on the Supreme Court's Mohamed Abdi Mohamed guidelines on additional evidence and on Mzee Wanje to argue the applicant was patching up weak areas. Gakeri J framed a single issue: whether the applicant had made a case for leave. The court noted with concern that this was the third ruling and that neither party had been anxious to conclude the four-year-old suit. Adopting Aburili J's sentiments in Hangover Kaakwacha Hotel, the court held that even after pre-trial and setting down for hearing, it may allow further witnesses and documents under Order 11 and Order 18 Rule 10 of the Civil Procedure Rules and Section 146 of the Evidence Act to secure a fair hearing under Article 50. The evidence was within the Respondent's knowledge, which could cross-examine and rebut, and no prejudice beyond delay was shown. The Mohamed Abdi guidelines were distinguished as relating to appeals, not trials. The application was allowed with no orders as to costs.

Key legal issues

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01

Whether leave should be granted to adduce additional evidence in a first-instance trial after directions have been given

Holding

Leave granted; the evidence was relevant, within the Respondent's knowledge, and the applicant could not have obtained it earlier with reasonable diligence; no prejudice demonstrated.

Reasoning

The court affirmed its discretion under Order 11 and Order 18 Rule 10 of the Civil Procedure Rules and Section 146 of the Evidence Act to allow further witnesses and documents even after pre-trial, to secure the fair hearing guaranteed by Article 50. The material was known to the Respondent, which could cross-examine and file rebuttal evidence. Other than the parties' own delays, no prejudice was shown. The applicant could not have obtained the evidence earlier except through a third party.

p. 4
02

Whether the Mohamed Abdi Mohamed guidelines govern admission of additional evidence at trial

Holding

They do not; they relate to appellate, not trial, admission of evidence.

Reasoning

The Respondent relied on the Supreme Court's guidelines in Mohamed Abdi Mohamed to resist admission of the evidence. The court distinguished those guidelines as applicable to evidence on appeals, whereas the instant matter was before the trial court, where the overriding consideration is a fair hearing for both parties.

p. 5

Legal principles established

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  • The court's discretion to allow additional evidence is intended to facilitate a fair hearing and must be exercised fairly to both parties, including according the other party an opportunity to adduce controverting evidence.
  • The Supreme Court's Mohamed Abdi guidelines on additional evidence apply to evidence on appeals, not to trial courts.

Court orders

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  1. 1.Leave granted to the Claimant to adduce and rely upon further additional evidence by way of the Claimant's Further Supplementary Witness Statement, additional witness statement by Patriciah Newmyer and further supplementary list of documents all dated 23rd November, 2023
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3(1), (3) and 20
  • Civil Procedure ActSections 1A, 1B, 3A and 22
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 11; Order 18 Rule 10; Order 21 Rule 1
  • Constitution of Kenya, 2010Articles 50(1), 159(2)(d), 48
  • Evidence ActSection 5; Section 146

Cases cited (7)

  • Pinnacle Projects Ltd V Presbyterian Church of East Africa, Ngong Parish & another
    (2018) eKLR
  • Hangover Kaakwacha Hotel Ltd V Philip Adundo & Leonard Adundo t/a Hangover Kaakwacha Hotel
    (2022) eKLR
  • Esther Wambui Njenga V Harrison Mwangi Nyota & 2 others
    (2018) eKLR
  • Marcus Kiranga Nimrod V Nessy Kuthi Justus & another
    (2017) eKLR
  • Mohamed Abdi Mohamed V Ahmed Abdullahi Mohamed and 3 others
    (2018) eKLR
  • Mzee Wanje and 93 others V A.K. Kaikwa
    (1982 – 88) KAR 463
  • Rafiki Micro-Finance Bank Ltd V John & another
    (2023) eKLR
Jurisdiction invoked
Section 3(1), (3) and 20 of the Employment and Labour Relations Court Act; Sections 1A, 1B, 3A and 22 of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules; Articles 50(1) and 159(2) of the Constitution of Kenya, 2010

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, "Musee v International School of Kenya Ltd (Cause 60 of 2020) [2024] KEELRC 608 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/608/eng@2024-03-18

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