[2024] KEELRC 831 (KLR)
The court found that the issue of covert operations was not pleaded in the claim, nor was it included in the Claimant's explanations or witness statement. The matter only arose during the Claimant's testimony and was not part of the original pleadings. Since the Respondent's witness had indicated he was not aware of...
Source-derived case information.
- Citation
- [2024] KEELRC 831 (KLR)
- Parties
- Claimant: Major (Rtd) Nicholas Mayenze Mwanji; Respondent: Kenya Revenue Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E610 of 2020
- Procedural Posture
- Employment Cause / Ruling on Evidentiary Objection During Hearing
- Outcome
- Objection upheld; Respondent's witness not compelled to answer questions on covert operations.
- Judges
- Nzioki wa Makau
- Legal Topics
- Disciplinary Hearing Procedure, Admissibility of Evidence, Witness Knowledge Scope
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Major (Rtd) Nicholas Mayenze Mwanji
Claimant
Kenya Revenue Authority
Respondent
Procedural Posture
Employment Cause / Ruling on Evidentiary Objection During Hearing
Legal Issues
- 1 Whether the Respondent's witness can be compelled to answer questions regarding covert operations not pleaded in the claim.
- 2 Whether the objection to questions outside the witness's knowledge should be upheld.
Ratio Decidendi
The court found that the issue of covert operations was not pleaded in the claim, nor was it included in the Claimant's explanations or witness statement. The matter only arose during the Claimant's testimony and was not part of the original pleadings. Since the Respondent's witness had indicated he was not aware of the issue and the question pertained to matters outside his knowledge and the scope of the pleadings, the court upheld the Respondent's objection. The court emphasized that witnesses cannot be compelled to answer questions on matters not within their knowledge or not forming part of the pleaded issues.
Court Disposition
Objection upheld; Respondent's witness not compelled to answer questions on covert operations.
Orders
- The objection by the Respondent is upheld.
- The Respondent's witness is not required to answer questions regarding covert operations.
Full Case Text
Judgment text and source record
20 paragraphs
Mwanji v Kenya Revenue Authority (Cause E610 of 2020) [2024] KEELRC 831 (KLR) (16 April 2024) (Ruling)
Neutral citation: [2024] KEELRC 831 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E610 of 2020
Nzioki wa Makau, J
April 16, 2024
Between
Major (Rtd) Nicholas Mayenze Mwanji
Claimant
and
The Kenya Revenue Authority
Respondent
Ruling
1. The Respondent's counsel Mr. Chabala objects to the questions put by the counsel for the Claimant Mr. Laichena. It was objected that the witness, Mr. Kabia has already answered after the question had been put in relation to the witness the Claimant asserts, he had asked for Mr. Chabala objects that the issue in question arose after investigation and therefore is not within the Respondent's witness knowledge.
2. Mr. Laichena for the Claimant submits that the witness for the Respondent is true to testify on behalf of the Respondent. He submits the witness has indicated he is not aware that there was money for covert forwarding. Mr. Laichena submits that his counsel indicates that at the disciplinary hearing he asked for the inspector to be called and that there was need to show there are covert operations. Counsel submitted that KRA had refused to release the transcript of proceedings and that the witness for the Respondent has to answer if he questioned the Chief Inspector or not.
3. Mr. Chabala in a brief reprise submits that in examination in chief, he had placed a question to the Respondent’s witness as to whether he was aware of the request made to question Mr. Mutwiri and the witness had answered that he is not aware. Counsel submitted the witness should be allowed to say as he has, that he does not know.
4. The question put to the Respondent's witness Mr. Kabia, is whether he is aware of the issue of covert operations. In the proceedings before me, the matter of covert operations arose during the testimony of the Claimant. It is not pleaded, is not on the Claimant's explanations to show cause or his statement. The issue pleaded at paragraph 19 of the claim is where the Claimant averred that he sought the Police Commander to be summoned to testify on the disbursement of the funds, a request that was denied by the panel chair.
5. Granted the issue of covert operations came up after investigating, it would not be to answer as to whether he questioned the Police Commander, or any other person for that matter, about covert operations. He has indicated that he is not aware of the issue and as such the court upholds the objection raised by Mr. Chabala.
Dated and signed in open court this 16th day of April 2024 at Nairobi********Nzioki wa MakauJUDGEPage 2 of 2