[2016] KEELRC 584 (KLR)
The court found that the claimant's line of questioning was not outside the scope of the pleadings, as the statement of claim referenced issues of redundancy and the respondent's defence addressed redundancy notices. The court held that probing questions regarding other dismissals were relevant to the pleaded issues...
Source-derived case information.
- Citation
- [2016] KEELRC 584 (KLR)
- Parties
- Claimant: Fatuma Ali Asman; Respondent: De La Rue Currency & Security Print Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1220 of 2013
- Procedural Posture
- Employment Cause / Ruling on Objection During Hearing
- Outcome
- objection declined; witness to answer the question
- Judges
- AN Makau
- Legal Topics
- Redundancy Procedure, Summary Dismissal, Constructive Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Ali Asman
Claimant
De La Rue Currency & Security Print Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Objection During Hearing
Legal Issues
- 1 Whether the claimant's counsel is permitted to question the witness on matters relating to redundancy and summary dismissal.
- 2 Whether the line of questioning by the claimant's counsel is outside the scope of the pleadings.
- 3 Whether the respondent's objection to the line of questioning should be upheld.
Ratio Decidendi
The court found that the claimant's line of questioning was not outside the scope of the pleadings, as the statement of claim referenced issues of redundancy and the respondent's defence addressed redundancy notices. The court held that probing questions regarding other dismissals were relevant to the pleaded issues and necessary for establishing the claimant's case. Therefore, the objection to the questioning was declined, and the witness was ordered to answer the questions related to redundancy.
Court Disposition
objection declined; witness to answer the question
Orders
- The objection by the respondent is declined.
- The witness shall answer the question put in relation to redundancies.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
OF KENYA AT NAIROBI
CAUSE NO. 1220 OF 2013
FATUMA ALI ASMAN……………………….……….....………CLAIMANT
VERSUS
DE LA RUE CURRENCY & SECURITY PRINT LTD….…..RESPONDENT
RULING
1. The objection taken by Mr. Leshan is to effect that the counsel for the Claimant is asking irrelevant questions which are no in tune with his pleadings. Mr. Leshan sought to have the objection upheld as what Mr. Kimakia was bringing out was totally different from the plea he had made. He submits that the questions put are to him an alteration of the case from the bar and thus objectionable.
2. Mr. Kimakia on his part submits that he is trying to establish the issue of constructive redundancy and thus was trying to demonstrate that the Respondent opted for summary dismissal for flimsy reasons once it realized that it would pay a hefty sum in redundancy pay outs. He submitted that it was on that basis that he sought to demonstrate there was a pattern of summary dismissals as a way of countering the business turbulence the Respondent was going through. He stated that it was only by bringing out the details of other employees dismissed summarily that he could bring thus out to the Court.
3. The assertion that the case for the Claimant is morphing is not entirely true granted the pleadings before Court. In particular, the statement of claim at paragraphs 13,14 and 15 suggests that there is a unforeseen hand in the dismissal. Mr. Leshan objects to the line of questioning and submits the Claimant’s counsel should not have such a foray. On his part, Mr. Kimakia submits the only way to demonstrate the pattern of dismissal is by placing the question he has put to the witness.
4. If indeed, there was dismissal on account redundancy and the Court is yet to make any such finding, the most appropriate way to bring to the Court’s attention the nature of dismissal. Probing and uncomfortable questions such as has been placed before the witness would be apt. She is the correct person to answer if there was any other dismissal that could demonstrate the aspects of redundancy pleaded in paragraphs 13, 14 and 15 of the claim.
5. The Respondent in its defence also pleaded that redundancy notices were issued because it intended to declare redundancies in conformity with Section 40 of the Employment Act and that the issuance to the Claimant of the said notice did not mean she would be declared redundant. The pleadings at para 33(a),(b),(c),(d),(e),(f) and (g) as well as para 34 and 35 of the Defence are instructive.
6. The Court therefore declines to uphold the objection and orders that the witness answer the question put in relation to the aspect of redundancies anticipated.
It is so ordered.
Dated at Nairobi this 29th day of June 2016.
Nzioki wa Makau
JUDGE