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ELRCOtherNot stated in extract· [2024] KEELRC 2275 (KLR)

Odhiambo v Teachers Service Commission (Cause E030 of 2023) [2024] KEELRC 2275 (KLR)

Employment and Labour Relations Court
23 September 2024
NMNzioki wa Makau
383 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court barred a claimant from alleging fabricated minutes in testimony because those allegations were never included in his written pleadings.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Kisumu, delivered by Nzioki wa Makau J on 23 September 2024, arising from an objection taken during the Claimant's testimony. Mr. Mulaku for the Respondent objected that the Claimant was adducing allegations of fabricated evidence - specifically fabricated minutes of Board and TSC meetings - which were neither pleaded nor indicated in his testimony, and sought their expungement on the ground that the Respondent would be handicapped in responding. Mr. Odeny for the Claimant countered that since the Respondent had produced the minutes, the Claimant was entitled to refer to them, and the Respondent's witness could answer the allegations. The court held that witnesses must make reference to specific documents when giving evidence, and perusing the proceedings found no pleading or reply to defence adverting to fabricated minutes. While the Claimant could give a general comment on documents produced by the Respondent, he could not be permitted under the rules of evidence to introduce fresh evidence that would handicap the Respondent's defence. Invoking equality of arms and the requirement that each side be reasonably notified of the case it must meet, the court held that a mere opportunity to reply was insufficient. The objection was upheld to the extent that the Claimant must pull out the memo of claim or defence and refer to specific documents before comment could be invited. No costs order was made. The case number and parties' identities are not stated in the extract.

Key legal issues

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01

Admissibility of unpleaded testimony alleging fabricated evidence

Holding

The objection was upheld: the Claimant may give a general comment only after referring to specific documents in the memo of claim or defence

Reasoning

The court found no pleading or reply-to-defence adverting to fabricated minutes. Under the rules of evidence, a party cannot avail fresh evidence that would handicap the other side's ability to defend itself. Equality of arms requires reasonable notice of the case to be met; a bare opportunity to reply is insufficient. The Claimant must first point to specific documents before comment is invited.

p. 1

Legal principles established

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  • A witness must refer to specific documents before commenting on them; a party cannot introduce fresh unpleaded evidence that would unfairly handicap the opposing side, as there is equality of arms

Court orders

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  1. 1.Objection upheld to the extent that the Claimant must pull out the memo of claim or defence and refer to specific documents before commenting on them
  2. 2.It is so ordered
Jurisdiction invoked
Not stated in extract (Employment and Labour Relations Court first-instance matter)

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, "Odhiambo v Teachers Service Commission (Cause E030 of 2023) [2024] KEELRC 2275 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2275/eng@2024-09-23

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