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ELRCAllowedNot stated in the excerpt (Memorandum of Claim dated 5/8/2022)· [2024] KEELRC 1943 (KLR)

Mulusa v Co-operative Bank of Kenya Limited (Employment and Labour Relations Cause E706 of 2022) [2024] KEELRC 1943 (KLR)

Employment and Labour Relations Court
26 July 2024
AMAnna Ngibuini Mwaure
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court can summon a state investigator as a witness in an unfair dismissal case even without advance notice to the other side.

What this practically means

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Executive summary

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This was a ruling in an interlocutory application within an employment claim in which the Claimant, Slyvia Kadenyeka Mulusa, sued for unfair and unlawful termination. The Respondent bank, which alleged she was summarily dismissed for gross misconduct over a fraudulent staff loan for the purchase of L.R No. Kajiado/Kitengela/107016, filed a Notice of Motion dated 15th March 2024 seeking witness summons directed to Mr. Harrison Mwendo of the Banking Fraud Investigation Unit (BFIU) or any other designated investigating officer, and an order compelling production within 30 days of certified copies of documents from BFIU's investigations into the alleged fraudulent dealings, including collusion with Musit Investment Limited (vendor) and Savannah Consulting Ltd (valuer) to inflate the property's valuation. The Respondent argued the documents and the officer's testimony were material but held in BFIU custody, and that the officer would only attend on court summons; the officer had been listed as a witness on 7/11/2023. The court framed a single issue: whether the summons should issue. Applying Rule 20 of the ELRC (Procedure) Rules, and adopting the High Court's reasoning in Tatu City Limited v Taijbee Bhalla Advocates LLP which applied Manchester Outfitters Ltd v Pravin Galot, the court held the Respondent had proved the officer's testimony was necessary, that no prejudice would befall the Claimant who may cross-examine, and allowed the application, ordering issuance of witness summons with costs in the cause.

Key legal issues

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01

Whether the Respondent established the necessity of the BFIU investigating officer's testimony and documents

Holding

Yes - the Respondent proved the testimony of Harrison Mwendo or any other designated BFIU officer is necessary, as the documents are in BFIU custody and the officer would only attend on summons; no prejudice to the Claimant who may cross-examine.

Reasoning

The court applied Rule 20 of the ELRC (Procedure) Rules permitting summons to any person with relevant information. The Respondent showed it surrendered documents to BFIU, which investigated the fraud allegations leading to the Claimant's dismissal, and that the officer would only appear if summoned. The Claimant was already aware via the witness list and retains the right to cross-examine, so no prejudice arises.

p. 4

Legal principles established

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  • The ELRC may, on its own motion or at a party's request, summon any person with information relevant to the issues before it to give evidence or produce documents.
  • No mandatory requirement exists that an application for witness summons be served on the intended witness before it is considered; a court may summon necessary witnesses suo motu.

Court orders

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  1. 1.Issuance of witness summons to Harrison Mwendo or any other designated BFIU officer to testify in court in the suit on the hearing date and produce any relevant documents
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 20
  • Civil Procedure ActSection 22(b)
  • Civil Procedure RulesOrder 16
  • Evidence ActSections 125 and 128
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (2)

  • Tatu City Limited & another v Taijbee Bhalla Advocates LLP
    Civil Case E702 of 2021 [2022] KEHC 11916 (KLR) (Commercial and Tax) (21 July 2022) (Ruling)
  • Manchester Outfitters Ltd v Pravin Galot 4 others
    [2021] eKLR
Jurisdiction invoked
Rule 20 of the Employment and Labour Relations Court (Procedure) Rules - original employment jurisdiction over the Memorandum of Claim dated 5/8/2022

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, "Mulusa v Co-operative Bank of Kenya Limited (Employment and Labour Relations Cause E706 of 2022) [2024] KEELRC 1943 (KLR)", Case Analysis (2024). Not stated in the excerpt (Memorandum of Claim dated 5/8/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1943/eng@2024-07-26

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