Riaga v Kenya Revenue Authority (Cause E869 of 2022) [2024] KEELRC 2148 (KLR)
The bottom line
#Kenya's Employment Court refused to re-open a worker's case because he waited until the employer's witness testified to request more evidence he already had.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should exercise its discretion to re-open the Claimant's case and summon three witnesses to testify
The application failed. The evidence sought was in the applicant's possession before filing the suit; the delay was inordinate and unexplained; the application was made only after the Respondent's first witness testified, suggesting it was intended to fill gaps and counter the Respondent's evidence.
The court applied the settled principles in Susan Wavinya Mutavi V Isaac Njoroge: the discretion is exercised judiciously so as not to prejudice the opposite party; gaps in evidence will not be filled; inordinate and unexplained delay defeats the plea; and the applicant must show the evidence could not have been obtained with reasonable diligence. The applicant participated in at least eight pre-trial appearances without seeking leave to adduce the evidence, never disclosed when he received the criminal-case statements, and never alleged the evidence was inaccessible before trial. The application was therefore a late afterthought and was dismissed.
Whether the court has a duty to ensure all evidence is laid bare / to call evidence for a party
No. It is not the court's duty to ensure parties disclose or adduce evidence; a party who fails to adduce necessary evidence suffers the consequences, as the burden of proof provisions in Sections 107, 108 and 109 of the Evidence Act demonstrate.
The court held that the suit belongs to the parties and it behooves them to avail all evidence they intend to rely on. The court is an impartial arbiter and cannot control the evidence a party adduces. Courts determine disputes on the basis of the evidence produced by the parties, and the burden-of-proof provisions of the Evidence Act allocate the risk of failing to adduce evidence to the parties themselves.
Legal principles established
#- A court will only order the re-opening of a party's case if satisfied that there is a sustainable justification supported by credible evidence
- The suit belongs to the parties, who must avail all evidence they intend to rely on; the court is an impartial arbiter and cannot control the evidence parties adduce
- A trial should not be used as a fishing ground for new evidence to fill gaps created by a party's own failure of diligence
Court orders
#- 1.The Claimant's Notice of Motion dated 21st May, 2024 was dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Inherent jurisdiction and discretion under Article 50(1) and 159(2)(d) of the Constitution, the Civil Procedure Act, Civil Procedure Rules and the Evidence Act (application for re-opening of case and summons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Riaga v Kenya Revenue Authority (Cause E869 of 2022) [2024] KEELRC 2148 (KLR)", Case Analysis (2024). Cause No E869 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2148/eng@2024-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.