[2021] KEELRC 1136 (KLR)
The court held that re-examination must be confined to issues arising from cross-examination and cannot be used to introduce new matters or context that were not previously addressed. Allowing the respondent's counsel to ask questions about the context of emails, when only the source was confirmed in...
Source-derived case information.
- Citation
- [2021] KEELRC 1136 (KLR)
- Parties
- Claimant: Nancy Omolo; Respondent: Mercy Corps
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E013 of 2020
- Procedural Posture
- Employment Cause / Ruling on Objection During Re Examination
- Outcome
- Objection upheld. Respondent's re-examination questions limited to matters arising from cross-examination.
- Judges
- AN Makau
- Legal Topics
- Re Examination Scope, Witness Examination, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Omolo
Claimant
Mercy Corps
Respondent
Procedural Posture
Employment Cause / Ruling on Objection During Re Examination
Legal Issues
- 1 Whether the respondent's counsel exceeded the permissible scope of re-examination by introducing new matters not covered in cross-examination.
- 2 Whether limiting re-examination to issues arising from cross-examination is necessary to ensure procedural fairness.
Ratio Decidendi
The court held that re-examination must be confined to issues arising from cross-examination and cannot be used to introduce new matters or context that were not previously addressed. Allowing the respondent's counsel to ask questions about the context of emails, when only the source was confirmed in cross-examination, would unfairly disadvantage the claimant, who would not have the opportunity to cross-examine on those new matters. The objection was therefore upheld to preserve procedural fairness and ensure that the claimant is not prejudiced by the introduction of new evidence during re-examination.
Court Disposition
Objection upheld. Respondent's re-examination questions limited to matters arising from cross-examination.
Orders
- Questions in re-examination must be limited to areas covered in cross-examination and only for clarification.
- Objection by claimant's counsel is upheld.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. E013 OF 2020
(Formerly Cause No. 297 of 2020)
NANCY OMOLO……...……………………………………..….CLAIMANT
VERSUS
MERCY CORPS……………………………………..……….RESPONDENT
RULING
1. Objection is taken to the line of questions raised by the Respondent’s Counsel in re-examination. Mr. Odhiambo for the Claimant asserts that he did not ask questions in relation to the context of the emails his learned colleague refers to. He objects that he would not be able to have an opportunity to cross examine on the same.
2. The Respondent’s Counsel argues that the questions she is putting to the witness are permitted in re-examination and argues that she is only seeking to refer to documents the Claimant’s Advocate referred to and ask questions that have arisen from the cross examination. Miss Mwango argues that the questions she has asked are therefore not outside of the parameter of re-examination.
3. In a brief reply Mr. Odhiambo for the Claimant submitted he was afraid Counsel for the Respondent Miss Mwango would ask questions on context and since all he asked was for a confirmation as to the source of the email, he could be unable to cross examine as the answers the witness could give in respect of the context.
4. During re-examination, the party asking the questions is limited in the scope of questions that can be put. It is only questions that arose in cross examination that are permitted. In order to permit a fair hearing, a party cannot open up new lines of questions that would leave the other party at the distinct disadvantage of not being able to counter or rebut by way of cross examination. In this case Counsel for the Respondent is busy re-opening the examination of the witness and as such the Court is in agreement that the Claimant’s Counsel would not have a chance to cross examine the evidence now being led. I find that the objection is well taken. In the premises the questions being asked of the witness must be limited only to the areas covered in cross examination and only if they will clarify an issue as this is not an examination in chief. Objection upheld.
It is so ordered.
Dated and delivered at Nairobi this 7th day of July 2021
Nzioki wa Makau
JUDGE