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ELRCDismissedCause (Motion dated 21 June 2025) - not stated in judgment· [2025] KEELRC 2765 (KLR)

Kiarie v Alliance for a Green Revolution In Africa (AGRA) (Cause E211 of 2025) [2025] KEELRC 2765 (KLR)

Employment and Labour Relations Court
9 October 2025
SRStephen Radido
805 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 refused to force two former executives to testify, ruling claimants must first show witnesses won't testify voluntarily.

What this practically means

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Executive summary

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The Claimant, Jean Kiarie, sued the Alliance for a Green Revolution in Africa alleging unfair termination (constructive dismissal), discrimination and harassment. Pending the hearing she moved the Court seeking leave to issue witness summons against Dr Agnes Kalibata (former President of AGRA) and Mr Yamfwa Chiyanta (former Director, Human Resources & Administration), or in the alternative, an order that the Respondent and those officers produce documents relating to a meeting of 8 October 2024, the Mutual Separation Agreement dated 14 October 2024, and decisions on her benefits. The Respondent opposed, deponing that its witness statements already explained the separation, and that the proposed witnesses had left its employment and the Court's jurisdiction. The court held it had power under section 23 of the Civil Procedure Act and Order 16 of the Civil Procedure Rules to issue witness summons, but that the Claimant had not shown she approached the witnesses and was refused, nor that they would be unwilling to testify. The Claimant bore the evidential burden regarding the 8 October 2024 meeting; if she discharged it, the Respondent could rebut. It was for the Respondent to decide whether to call its former senior managers, one of whom was the Claimant's superior, and the Claimant had not shown the witnesses kept notes of any meeting. Her adverse allegations against the witnesses also made their assistance doubtful. The Motion dated 21 June 2025 was dismissed without any order on costs, the parties having failed to file submissions within agreed timelines.

Key legal issues

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01

Power to summon witnesses

Holding

The Court can issue witness summons on a party's application under section 23 Civil Procedure Act and Order 16 Civil Procedure Rules

Reasoning

The court cited section 23 of the Civil Procedure Act, Order 16 of the Civil Procedure Rules and Dahir Sadik Ausaad v Modogashe Construction Ltd as establishing the power, but held the power should be exercised where the party demonstrates need, such as unwillingness of witnesses to testify voluntarily.

p. 2
02

Evidential burden and compulsion of former employees

Holding

The Claimant bears the evidential burden on her account of the 8 October 2024 meeting; the Respondent may choose whether to call its former senior managers

Reasoning

The Claimant alleged she was present at the 8 October 2024 meeting and wanted the two former officers to testify. The court held she must first discharge her evidential burden, and if she meets the standard it is for the Respondent to rebut. It was not for the Court to demand the Respondent meet any shifting burden, nor to compel production of documents the witnesses were not shown to hold.

p. 2

Legal principles established

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  • The Court has power to issue witness summons on the application of a party under section 23 of the Civil Procedure Act and Order 16 of the Civil Procedure Rules
  • A party seeking to summon witnesses must show they are unwilling to testify; a claimant carries the evidential burden on her own case

Court orders

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  1. 1.The Motion dated 21 June 2025 is dismissed without any order on costs
Jurisdiction invoked
Section 23 Civil Procedure Act; Order 16 Civil Procedure Rules; section 3 Employment and Labour Relations Court Act

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, "Kiarie v Alliance for a Green Revolution In Africa (AGRA) (Cause E211 of 2025) [2025] KEELRC 2765 (KLR)", Case Analysis (2025). Cause (Motion dated 21 June 2025) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2765/eng@2025-10-09

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