[2019] KEELRC 900 (KLR)
The Court found that the Claimant failed to satisfy the threshold for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. The principal reason advanced by the Claimant—that the need to introduce further documents arose from the 2nd Respondent's Counterclaim and witness...
Source-derived case information.
- Citation
- [2019] KEELRC 900 (KLR)
- Parties
- Claimant: Professor Mwangi S. Kaimenyi; Respondent: Hon. Attorney General; Respondent: Kenya Institute for Public Policy Research and Analysis (KIPPRA)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 1716 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application for Review of Order Declining Admission of Documents
- Outcome
- application dismissed with costs to the respondents
- Judges
- MSA Makhandia
- Legal Topics
- Review of Court Orders, Admission of Evidence, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Professor Mwangi S. Kaimenyi
Claimant
Hon. Attorney General
Respondent
Kenya Institute for Public Policy Research and Analysis (KIPPRA)
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Review of Order Declining Admission of Documents
Legal Issues
- 1 Whether the Claimant satisfied the threshold for review of the order declining admission of further documents.
- 2 Whether the Claimant provided valid reasons for late introduction of documents after being served with the Response and Counterclaim in 2015.
Ratio Decidendi
The Court found that the Claimant failed to satisfy the threshold for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. The principal reason advanced by the Claimant—that the need to introduce further documents arose from the 2nd Respondent's Counterclaim and witness statement filed in February 2019—was not genuine, as the Response and Counterclaim had been served on her in March 2015. The Claimant did not deny this nor did she disclose when she came across the documents she sought to introduce. Furthermore, she failed to utilize the opportunity provided by the Court in April 2018 to file and serve further documents. The Court concluded that the...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application filed on 8 April 2019 by the Claimant is dismissed with costs to the Respondents.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1716 OF 2014
(Originally Nairobi High Court Civil Case No. 720 of 2009)
PROFESSOR MWANGI S. KAIMENYI CLAIMANT
v
HON. ATTORNEY GENERAL 1st RESPONDENT
KENYA INSTITUTE FOR PUBLIC POLICY
RESEARCH AND ANALYSIS (KIPPRA) 2nd RESPONDENT
RULING
1. On 15 April 2018, the Cause was listed before Court for a Notice to Show Cause.The Notice required the Claimant to give sufficient reasons why the suit should not be dismissed.
2. After hearing explanations and submissions from the parties, the Court indulged the Claimant and directed her to file and serve witness statements and documents on or before 18 May 2018.
3. The Respondents were directed to file and serve its witness statements and documents on or before 15 June 2018. Agreed Issues were to be filed before 30 June 2018.
4. On 20 July 2018, the Claimant caused the file to be mentioned before Court and she indicated that she had filed witness statements, and that she would be applying for witness summons. The Court directed that a formal application for witness summons be filed.
5. Despite not complying with the Court’s directions, come 15 January 2019, the Claimant caused the Deputy Registrar to fix the Cause for hearing on the basis that it was a 2009 matter. The Deputy Registrar scheduled the hearing for 6 February 2019.
6. When the Cause came up for hearing on the scheduled date, the Claimant sought to file and introduce 2 witness statements, and on that basis sought an adjournment.
7. The Respondents indicated they were ready to proceed and the Court, after noting that the Cause had been dismissed previously and that the Claimant had caused most of the prior adjournments, declined to grant an adjournment.
8. When the Court concluded the cause list call over and called out the Cause for hearing, the Claimant again sought to introduce new documents. The Respondents opposed the introduction of new documents and the Court declined to have the documents used as evidence.
9. Consequently, the hearing commenced and was adjourned to 17 April 2019.
10. However, on 8 April 2019, the Claimant filed an application seeking review of the order of 6 February 2019 declining to admit her documents. This application is the subject of the Ruling.
11. The Court heard the application on 2 July 2019.
12. The grounds upon which a review should be granted are set out in Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
13. The Claimant did not make any express reference to any of the grounds.
14. However, the main ground advanced by the Claimant in seeking to introduce further documents was that it was as a result of the filing by the 2nd Respondent of a Counterclaim and a witness statement on 4 February 2019.
15. In opposition to the application, the Executive Director of the 2nd Respondent filed a replying affidavit deposing that a Response and Counterclaim had been served upon the Claimant on 18 March 2015.
16. The 2nd Respondent’s Response and Counterclaim were filed and served upon the Claimant in 2015. She did not deny the assertion.
17. Although not denying that the Response and Counterclaim were served in 2015, the Claimant did not disclose to the Court the time that she came across the documents she had intended/attempted to introduce, some 4 years later, through the review application.
18. In the circumstances, the principal reason advanced by the Claimant cannot be valid or genuine.
19. If the reason was genuine, the Claimant should have disclosed when she came upon the documents and also explained why she did not take advantage of the window opened to her on 15 April 2018 to file and serve further documents on or before 18 May 2018.
20. In the view of the Court, the Claimant has failed to satisfy the threshold for review and/or setting aside the order of 6 February 2019.
21. The Court also notes that the Cause has been pending for about 10 years, a regrettable situation.
22. The application filed on 8 April 2019 by the Claimant is dismissed with costs to the Respondents.
Delivered, dated and signed in Nairobi on this 20th day of September 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Kihara instructed by C.N. Kihara & Co. Advocates
For Respondents Ms. Akuno, State Counsel, Office of the Attorney General
Court Assistant Lindsey