[2019] KEELRC 2510 (KLR)
The court found that the respondent had been given ample opportunities to file witness statements but failed to do so. Allowing the respondent to introduce a witness or file a statement after the claimant had already testified would cause prejudice to the claimant and amount to trial by ambush. Procedural fairness...
Source-derived case information.
- Citation
- [2019] KEELRC 2510 (KLR)
- Parties
- Claimant: Nelson Maina; Respondent: Kenyatta University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 407 of 2017
- Procedural Posture
- Employment Claim / Interlocutory Ruling
- Outcome
- Respondent's application to file a statement and avail a witness is denied. Defence case closed.
- Judges
- AN Makau
- Legal Topics
- Late Filing of Evidence, Trial by Ambush, Witness Statements, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Maina
Claimant
Kenyatta University
Respondent
Procedural Posture
Employment Claim / Interlocutory Ruling
Legal Issues
- 1 Whether the respondent should be granted leave to file a witness statement and avail a witness after the claimant has testified.
- 2 Whether allowing the respondent to call a witness without a prior statement would amount to trial by ambush and cause prejudice to the claimant.
Ratio Decidendi
The court found that the respondent had been given ample opportunities to file witness statements but failed to do so. Allowing the respondent to introduce a witness or file a statement after the claimant had already testified would cause prejudice to the claimant and amount to trial by ambush. Procedural fairness and the need to avoid prejudice to the other party outweighed the respondent's request. Consequently, the court closed the defence case and directed the parties to proceed to file submissions.
Court Disposition
Respondent's application to file a statement and avail a witness is denied. Defence case closed.
Orders
- Defence case is closed.
- Parties to file submissions as will be directed after this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 407 OF 2017
NELSON MAINA............................CLAIMANT
VERSUS
KENYATTA UNIVERSITY........RESPONDENT
RULING
1. Respondent seeks leave to file a statement and avail a witness. The Claimant objects on grounds that it would amount to a trial by ambush. The Claimant argues that what they would propound would be a surprise to them.
2. Respondent asserts through Counsel that the testimony is purely as per the response and would not entail filing of documents. The Advocate for Respondent therefore prays that they be allowed to avail the witness and have the witness testify. If the Court is minded testimony could be adduced without benefit of statement as per Counsel for Respondent.
3. In the case before me, the Respondent was availed numerous opportunities to file statements if need be but they did not. The Claimant has testified and in view of this fact and the fact that there would be a degree of prejudice to be suffered if examination of the Respondent’s witness is allowed without a statement or after filing of a statement after the testimony of the Claimant today. The Court closes defence case and orders parties to file submissions as will be directed after this Ruling.
It is so ordered.
Dated and delivered at Nyeri this 21st day of January 2019
Nzioki wa Makau
JUDGE
I certify that this is a true
copy of the original
DEPUTY REGISTRAR