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ELRCDismissedNot stated in extract (references Judicial Review No. 1769 of 2004 and Civil Appeal No. 160 of 2008)· [2025] KEELRC 1401 (KLR)

Kimenyi v Attorney General & another (Cause 1716 of 2014) [2025] KEELRC 1401 (KLR)

Employment and Labour Relations Court
15 May 2025
RSRADIDO STEPHEN
1,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that objections to evidence come too early if the document has only been filed but not yet formally tendered in court.

What this practically means

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Executive summary

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KIPPRA, the 2nd Respondent, had lined up its former Executive Director, Dr Rose Ngugi, to testify, but her term lapsed and Dr Eldah Onsomu was appointed. The court granted KIPPRA leave on 4 February 2025 to file a substitute witness statement by Dr Onsomu. KIPPRA filed it late, on 14 March 2025, and the court admitted it on 18 March 2025. The statement exhibited a Board Resolution of 10 February 2025 authorising the new Executive Director to act and testify. The Claimant objected orally, then filed a Motion dated 27 March 2025 seeking to strike out the Board minutes as new evidence not disclosed at pre-trial, introduced late after she closed her case, inadmissible, and prejudicial - arguing that the court had previously refused her leave to add new evidence and that admitting the minutes would amount to unequal treatment, citing Kanda v Government of Malaya on the right to know the case in advance. KIPPRA replied that the minutes introduced no new evidence and only authorised the replacement witness. The court, applying the Court of Appeal's three-stage framework in Kenneth Nyaga Mwige v Austin Kiguta on how documents become evidence, held the minutes were not yet part of the judicial record, did not touch the substance of the parties' cases, and that expunging them would shut KIPPRA out of its defence contrary to fair hearing and equality of arms. The court could not yet determine prejudice or evidentiary weight, and held the objection premature. The Motion was dismissed with costs to the 2nd Respondent.

Key legal issues

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01

When a document becomes part of the evidence in a case

Holding

A document passes through three stages: filing, tendering/admission as an exhibit, and proof at the final hearing; until tendered and admitted it is not part of the judicial record

Reasoning

Relying on the Court of Appeal's three-stage analysis in Kenneth Nyaga Mwige v Austin Kiguta, the court held that mere filing of a document does not make it evidence. Admission as an exhibit makes it part of the record but not proof of it; proof and weight are determined at the final hearing. The Board minutes had not been tendered and admitted, so the objection was premature.

p. 3
02

Whether expunging the substitute witness statement and Board minutes would offend fair hearing and equality of arms

Holding

Yes - declining to allow the substitute witness statement would shut KIPPRA out from defending its case

Reasoning

The court found the only material part of the minutes was the Board resolution allowing the new Executive Director to replace the previous Executive Director as witness. Striking them out would deny KIPPRA the right to a fair hearing and contravene equality of arms. The court could not at that stage determine whether the contents would prejudice the Claimant.

p. 3

Legal principles established

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  • A document filed but not yet tendered and admitted in evidence is not part of the judicial record; objections to its admissibility at the point of filing are premature

Court orders

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  1. 1.The Motion dated 27 March 2025 is dismissed with costs to the 2nd Respondent
Jurisdiction invoked
Not stated in extract (original employment and labour relations jurisdiction)

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, "Kimenyi v Attorney General & another (Cause 1716 of 2014) [2025] KEELRC 1401 (KLR)", Case Analysis (2025). Not stated in extract (references Judicial Review No. 1769 of 2004 and Civil Appeal No. 160 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1401/eng@2025-05-15

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