[2022] KEHC 680 (KLR)
The court determined that, although there are some similarities in the factual backgrounds of the two claims, there are also significant differences, particularly regarding the manner of separation from employment and the legal remedies sought. The claimants' roles as witnesses in each other's cases would complicate...
Source-derived case information.
- Citation
- [2022] KEHC 680 (KLR)
- Parties
- Claimant: Kelvin Were Anyango; Respondent: British American Tobacco Kenya PLC
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause 705 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Consolidation
- Outcome
- application for consolidation declined
- Judges
- J Rika
- Legal Topics
- Consolidation of Claims, Constructive Dismissal, Unfair Termination, Conflict of Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Were Anyango
Claimant
British American Tobacco Kenya PLC
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Consolidation
Legal Issues
- 1 Whether the two claims should be consolidated given their factual and legal similarities and differences.
- 2 Whether consolidation would prejudice the proceedings or cause confusion due to the parties' roles as witnesses in each other's cases.
Ratio Decidendi
The court determined that, although there are some similarities in the factual backgrounds of the two claims, there are also significant differences, particularly regarding the manner of separation from employment and the legal remedies sought. The claimants' roles as witnesses in each other's cases would complicate the proceedings if consolidated, potentially leading to confusion and lack of clarity in the evidentiary process. The court found that the interests of justice and procedural clarity are better served by prosecuting the claims individually, with evidence recorded separately for each claimant.
Court Disposition
application for consolidation declined
Orders
- The application for consolidation is declined.
- The claims to be prosecuted individually.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
CAUSE NUMBER 705 OF 2019
BETWEEN
KELVIN WERE ANYANGO ..................................................................CLAIMANT
VERSUS
BRITISH AMERICAN TOBACCO KENYA PLC.......................... RESPONDENT
RULING
1. Through the Application dated 8th November 2021, the Respondent seeks to have this Claim consolidated with Cause No. 768 of 209, Gerald Odhiambo Wabwire v. British American Tobacco PLC.
2. The Application is founded on the Affidavit of Eunice Kamau, Respondent’s Legal Counsel, sworn on 8th November 2021.
3. She explains that the 2 matters have similar factual background. The Claimant herein resigned in the course of a disciplinary hearing. He was facing charges relating to conflict of interest with one of the Respondent’s contractors. Gerald’s contract was terminated for failing to declare a conflict of interest with one of the Respondent’s contactors.
4. The Claimant herein is opposed to consolidation. He relies on his Replying Affidavit, sworn on 4th December 2021. He states that the facts are not similar. He resigned, while his counterpart was dismissed. He pleads constructive dismissal, while the other Claimant pursues remedies for unfair and unlawful termination. The Claimants are witnesses in each other’s causes. There will be confusion if the matters are consolidated.
5. It was agreed between the Parties, that the Application is considered on the strength of their Affidavits and Submissions. Ruling was scheduled for 6th April 2022 which regrettably coincided with the Judges’ Annual Conference.
The Court Finds: -
6. Consolidation of Claims is regulated under Rule 23 of this Court’s Procedure Rules, 2016.
7. It is allowable where some common question of fact or law arises; or where it is practical and appropriate to proceed with the issues raised in the Claims simultaneously.
8. The Court is of the view that the two Claims subject matter of this Ruling, cannot be appropriately dealt with under consolidation.
9. One Claimant left employment upon dismissal, while the other resigned, and claims he was constructively dismissed. The Claimants propose to be each other’s witness. The proceedings are not likely to be tidy, where evidence for a Claimant is recorded and the same Claimant gives further evidence as a Witness for the Co-Claimant simultaneously. The proceedings are clearer, where evidence is recorded separately, with clear lines drawn between a Claimant and a Witness for the Claimant.
10. The factual background is similar on certain aspects, but also significantly dissimilar on other aspects.
IT IS ORDERED: -
a. The Application for consolidation is declined.
b. The Claims to be prosecuted individually.
c. No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, AT CHAKA, THIS 28TH DAY OF APRIL 2022.
JAMES RIKA
JUDGE