https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1443

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E077 OF 2025** JAMES ANG’AWA OKEYO……………………………...…….**CLAIMANT** **VERSUS** GREEN WELLS ENERGIES LIMITED…………………..**RESPONDENT** **RULING** 1. Objection is taken to the statement of Mr. Abong’o for the Respondent. It is argued by Mr. Ang’awa that the claimant will be prejudiced as the court did not grant the reopening of the counter claim and that only the defence was to be raised today. He argues that the application for setting aside did not seek the introduction of new evidence. He submits that the court order cannot grant what was never prayed for. He states the statement of the 2nd defence witness addresses a counter claim which was closed in January 2026. He asserts the reopening of the defence case did not reopen the counter claim as there was no specific request to do so. He asserts that in the testimony adduced by affidavit is on the contents of a laptop and that that is a narrative constructed by leaned counsel for purposes of litigation. He thus urges the statement of Mr. Abong’o be struck out. He states he would address the claimant in cross examination should the court disallow the objection taken. 2. In his reply, counsel for the Respondent Mr. Ragot submits the ruling of 23rd March 2026 permitted the respondent’s case be reopened. It was his position the reopening was conditional, and the Respondent met all the conditions and confirmed compliance when case was listed for directions. He argues that the document in respect of which the objection is raised was precited by the claimant himself when the case was presented on 26th January 2026. It is argued that the document filed by the Respondent was as a result of the document the claimant filed on the eve of the hearing of his case. The Respondent’s Counsel asserts the Claimant’s misapprehension of the case by the Respondent is his own malice as the Ruling of the Court was clear. He argues the court gave directions and the supplementary documents were to be served and that these were duly served. There was no objection raised and the days date was fixed. Mr. Ragot urges that hearing be permitted to proceed with the defence witness who are on record. 3. In brief response, Mr. Ang’awa submits the only document that was raised was affidavit concerning the return of the laptop in compliance with the court order. He denies that there was an order for the service of the supplementary documents. He argues that the court permitted opening of the defence case and for payment of throw away costs. It was his argument that the court orders cannot be misconstrued to infer that which was never prayed for. 4. When the court heard the application to re-open the case, it gave a Ruling which in it stated this at paragraph 10 thereof: *“The court permits a reopening of the case to permit the defence present its case. He Respondent is to pay the claimant throw away costs of Kshs. 30,000/- within 7 days of the ruling failing which the parties will be required to file final submissions”.* 1. The Court gave a date for directions and on the date for directions two steps had been taken, the Respondent had paid the throw away costs ordered and the Respondent had filed 4 supplementary list of documents which included the statement of Mr. Abong’o. The Court gave directions on service of this bundle upon Claimant and set today for hearing. 2. It seems the claimant did not fully comprehend the phrase. *“The court permits a reopening of the case to permit the defence to present its case.”* The defence case is not severed from its counter claim. When heed is given to the amended defence and counter claim of September 2025, it is that a defence and counter claim. Had the court only reopened the defence to claim and not the defence case, it would have meant the Respondents were ……….. However, the reopening of the defendant’s case was …………… as the defence and counter claim are open for the hearing of the court. Granted the court has taken precular time meant for hearing to give this ruling. The case now will proceed before me on a date to be fixed for hearing after this ruling. For avoidance of doubt, the objection taken by the claimant is disallowed and the defencce is to present the entity of its defence and counter claim undisure of the statement of Mr. Abong’o. It is so ordered. 1. Respondent. It is so ordered. **Dated and delivered at Kisumu this 21st day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**