Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2024] KEELRC 622 (KLR)

Adhiambo v Barclays Bank of Kenya Limited (Cause 871 of 2019) [2024] KEELRC 622 (KLR)

Employment and Labour Relations Court
14 March 2024
LNLINNET NDOLO
1,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court allowed an employer to add an extra witness after three years, ruling late witness statements are admissible if no real prejudice results.

What this practically means

#

Executive summary

#
By Notice of Motion dated 28th November 2023, the Respondent sought leave to call a second witness during the defence case and to admit the witness statement of Michael Ngobo dated 25th October 2023, an investigator involved in a forensic investigation report already on record. The application was supported by an affidavit of Vaslas Odhiambo, the Respondent's Head of Employee Relations and Wellness Function, on the grounds that the testimony was essential to a fair hearing, would not introduce new evidence, and would not prejudice the Claimant as her case had not commenced. The Claimant opposed the Motion through a replying affidavit sworn on 18th December 2023, terming it an afterthought brought over three years after close of pleadings, asserting it raised new issues that would effectively re-open pleadings, and contending that prejudice from the expert testimony could not be cured by cross-examination alone. She additionally sought, conditionally, cross-examination of interviewed staff, access to the investigation documents, leave to file an expert report and call an expert witness. Counsel argued the Motion on 13th February 2024. The Claimant relied on two decisions where attempts to introduce documents during trial were restrained on grounds of prejudice. The Court distinguished those authorities, finding the present application concerned a witness statement rather than a document and that the Claimant had not yet presented her case, so no discernible prejudice would arise; conversely, refusal would lock out a critical part of the Respondent's evidence. The Court also held that the Claimant could not impose conditions on the exercise of its discretion nor raise substantive prayers in a replying affidavit. The Motion was allowed, the witness statement admitted, with costs in the cause.

Key legal issues

#
01

Admission of an additional witness statement after close of pleadings

Holding

The application was allowed because the Claimant had not yet presented her case, would suffer no discernible prejudice, and the witness was integral to the forensic investigation report already on record.

Reasoning

The Court distinguished the authorities relied on by the Claimant, which concerned introduction of documents during trial where the opposite party would be prejudiced. Here what was sought was a witness statement, not a document, and the Claimant was yet to present her case, so the Court had not formed any opinion on her case. Conversely, refusal would lock out a critical part of the Respondent's evidence.

p. 3

Legal principles established

#
  • A party cannot lawfully impose conditions on how the Court exercises its discretion, and substantive prayers cannot be raised for the first time in a replying affidavit.

Court orders

#
  1. 1.The Respondent's Notice of Motion dated 28th November 2023 is allowed
  2. 2.The witness statement of Michael Ngobo dated 25th October 2023 is admitted as duly filed
  3. 3.Costs of the application to be in the cause

Authorities

#

Cases cited (2)

  • Alfred Baya Msanzu v Kenya Ports Authority
    [2022] eKLR
  • Preview Property Agency & another v Terrie Wanjiku Miano
    [2021] eKLR
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to regulate its proceedings in the interest of justice (not expressly cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Adhiambo v Barclays Bank of Kenya Limited (Cause 871 of 2019) [2024] KEELRC 622 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/622/eng@2024-03-14

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