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ELRCAllowed(not stated in judgment)· [2025] KEELRC 2409 (KLR)

Ngunjiri v Middle East Bank Kenya Limited (Cause 97 of 2019) [2025] KEELRC 2409 (KLR)

Employment and Labour Relations Court
23 June 2025
OKOcharo Kebira
691 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out witness statements filed mid-trial without permission, confirming new evidence needs court leave once hearing dates are set.

What this practically means

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Executive summary

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In this interlocutory ruling of the Employment and Labour Relations Court at Mombasa, Ocharo Kebira J dealt with an application by the respondent to retain two witness statements (of Calvin Muchebi and Edith Omolo) filed on 27th May 2025 without the court's leave. The suit was filed on 9th December 2019 and hearing began on 5th November 2024; the claimant had testified in chief and undergone extensive cross-examination. The respondent justified the late filing on the ground that the claimant had introduced mid-trial evidence going beyond his pleadings and witness statement, requiring rebuttal. The claimant's counsel sought their removal, arguing the claimant would have no opportunity to challenge their contents. The court agreed that the claimant would suffer prejudice, his right to a fair hearing under Article 50 of the Constitution being engaged. The court reaffirmed that filing witness statements is a pre-trial step and that once a matter is ready for hearing, new statements require the court's leave upon sufficient reason and where the justice of the case requires. Relying on the principle that parties are bound by their pleadings - drawn from the IEBC v Mutinda Mule and Philip Osore Ogutu authorities - the court held the proper remedy for unpleaded evidence is to urge the court in final submissions to disregard it, not to file new statements mid-hearing, which would undermine pleadings and prolong litigation. The two witness statements were declared unnecessary and improperly filed and were expunged from the record. No costs order was made.

Key legal issues

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01

Whether late-filed witness statements without leave should stand

Holding

They are improperly filed and expunged.

Reasoning

The statements were filed without the court's leave at the tail end of the claimant's case. The claimant would have no opportunity to challenge them by evidence, violating his right to a fair hearing under Article 50. Filing witness statements is a pre-trial step and permitting them mid-hearing would encourage salvage attempts and inefficiency.

p. 2
02

Proper response to unpleaded evidence introduced mid-trial

Holding

The respondent should address the principle in final submissions, urging the court to disregard unpleaded matters.

Reasoning

The court held that parties are bound by their pleadings and evidence at variance with pleadings goes to no issue. Allowing new witness statements mid-hearing would undermine the purpose of pleadings and prolong litigation. The proper course is to ask the court in submissions not to be influenced by the unpleaded evidence.

p. 2

Legal principles established

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  • Once a matter is deemed ready for hearing, further or new witness statements may only be filed with the court's leave upon sufficient reason and where the justice of the case requires it.
  • Evidence that does not flow from a party's pleadings goes to no issue and must be disregarded; the remedy for unpleaded evidence is submission, not late witness statements.

Court orders

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  1. 1.The two witness statements of Calvin Muchebi and Edith Omolo filed on 27th May 2025 are expunged from the record
  2. 2.The respondent is to rely on submissions to address unpleaded matters introduced by the claimant mid-trial

Authorities

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Legislation

  • Constitution of KenyaArticle 50

Cases cited (3)

  • Independent Elections and Boundaries Commission and Another VS Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Adetoan Olejedu v Nigeria Breweries
    LC SC.91 of 2021
  • Philip Osore Ogutu -vs-Michael Onjuya Aringo & 2 Others
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction (specific provision not stated in judgment)

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, "Ngunjiri v Middle East Bank Kenya Limited (Cause 97 of 2019) [2025] KEELRC 2409 (KLR)", Case Analysis (2025). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2409/eng@2025-06-23

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