[2024] KEELRC 2275 (KLR)
The court held that the Claimant cannot be permitted to introduce allegations of fabricated minutes or evidence that were neither pleaded nor referenced in prior proceedings. Allowing such evidence would handicap the Respondent's ability to defend itself and violate the principle of equality of arms. The court...
Source-derived case information.
- Citation
- [2024] KEELRC 2275 (KLR)
- Parties
- Applicant: Tom Fred Odhiambo; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E030 of 2023
- Procedural Posture
- Employment Cause / Ruling on Evidentiary Objection During Hearing
- Outcome
- Objection upheld in part; Claimant required to refer to specific documents before commenting.
- Judges
- Nzioki wa Makau
- Legal Topics
- Admissibility of Evidence, Pleadings and Particulars, Procedural Fairness, Documentary Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Fred Odhiambo
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Employment Cause / Ruling on Evidentiary Objection During Hearing
Legal Issues
- 1 Whether the Claimant can introduce allegations of fabricated evidence not pleaded or referenced in prior testimony.
- 2 Whether evidence not specifically referenced to documents in pleadings is admissible.
Ratio Decidendi
The court held that the Claimant cannot be permitted to introduce allegations of fabricated minutes or evidence that were neither pleaded nor referenced in prior proceedings. Allowing such evidence would handicap the Respondent's ability to defend itself and violate the principle of equality of arms. The court emphasized that witnesses must make reference to specific documents when adducing evidence, and general comments on documents produced by the opposing party are permissible only if they are properly referenced. The objection was upheld to the extent that the Claimant must refer to specific documents in the memo of claim or defence before commenting on them.
Court Disposition
Objection upheld in part; Claimant required to refer to specific documents before commenting.
Orders
- The Claimant must refer to specific documents in the memo of claim or defence before making comments on them.
Full Case Text
Judgment text and source record
20 paragraphs
Odhiambo v Teachers Service Commission (Cause E030 of 2023) [2024] KEELRC 2275 (KLR) (23 September 2024) (Ruling)
Neutral citation: [2024] KEELRC 2275 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause E030 of 2023
Nzioki wa Makau, J
September 23, 2024
Between
Tom Fred Odhiambo
Claimant
and
Teachers Service Commission
Respondent
Ruling
1. Objection is taken as to the testimony being adduced. Mr. Mulaku for the Respondent asserts the witness is making allegations of fabricated evidence, a matter that is neither pleaded nor indicated anywhere in the testimony of the Claimant. He asserts the evidence should be expunged for that reason as Respondent will be handicapped in response or answer to this new evidence being adduced.
2. Mr. Odeny for the Claimant asserts the Respondent produced minutes of the meetings held both at the Board and at TSC and that it was therefore within bounds for the Claimant to refer to them. He urged the Court to disallow the objection raised. He indicated the witness for the Respondent would be able to avail answers and respond to the allegations made.
3. In a brief reply Mr. Mulaku for Respondent asserts the defence is handicapped as the Claimant makes no specific reference to a document and the allegations made are without foundation. He states the witness should point out specifically at the documents in respect to his testimony.
4. When adducing evidence, it is imperative that witnesses make reference to specific documents. In the mater before me, it is asserted the Claimant is now testifying over things he was neither pleaded nor raised prior.
5. Having perused the proceedings by the Claimant, I see no indication of any allegation of fabricated minutes. There is no reply to defence adverting to the allegations of fabricated minutes. Whereas the Claimant can give a general comment on the documents produced by the Respondent, he cannot be permitted under the rules of evidence to avail fresh evidence that would handicap the ability of the Respondent to defend itself. There is equality of arms and each side has to be reasonably notified of the case it is to meet. Merely stating the defence has opportunity to reply is not good enough. In my considered view, the Claimant must of necessity make reference to specific documents and then his comment thereon can be invited. As such, I uphold the objection made to the extent that the Claimant should pull out the memo of claim or defence and refer to specific documents.It is so ordered.
DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF SEPTEMBER 2024NZIOKI WA MAKAUJUDGE