https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2216

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **CAUSE NUMBER E071 OF 2025** **BETWEEN** FREDRTICK OWUOR SINGH …………………………………………………………………CLAIMANT **VERSUS** SAFARICOM PLC ………………………………………………………………………… RESPONDENT **RULING** 1. This Claim was scheduled for hearing on 12th May 2026, when the Claimant objected to inclusion of certain witness statements. 2. These are statements that were taken when the events leading to the summary dismissal of the Claimant, were investigated. 3. The makers of the statements were not called as witnesses at the disciplinary hearing, and are not listed as witnesses for the Respondent, in the Claim before the Court. 4. The Respondent has however included these statements as part of its bundle of documents. 5. The Claimant objects to inclusion of statements by persons who are not listed as witnesses, and who the Respondent does not intend to call, advancing the position that he is entitled to interrogate the statements, through cross-examination of their authors. 6. The Court adjourned the hearing on 12th May 2026, to enable it consider the objection, and make the ruling herein. The Court Finds: - 1. The statements in issue were authored by Titus Wanjau Kanyeki, Jackson Kariuki Mwangi, and Edward Mathu Murage. 2. They were recorded by the Respondent’s security department, in the course of investigating the allegations against the Claimant. 3. Kanyeki, Mwangi and Murage are not listed as witnesses for the Respondent. They did not record witness statements in the Claim, under Rule 35 of the E&LRC [Procedure] Rules, 2024. 4. The witnesses proposed to be called by the Respondent, who have filed witness statements are Kelvin Simiyu Muray, Emmanuel Andati Mabango, and Odhiambo Ooko. 5. The statements of Kanyeki, Mwangi and Murage, though not witness statements under Rule 35 of the E&LRC [Procedure] Rules, 2024, are necessary part of the investigation report. 6. They are part of the Respondent’s investigation record, as opposed to witness statements. 7. The Rules require Parties to file witness statements, as well as documents they intend to rely upon. 8. The statements made by Kanyeki, Mwangi and Murage, are part of the documents filed by the Respondent, not witness statements. 9. There is no obligation that these persons are called as witnesses. Their statements however, are not to be given the same weight as witness statements, filed by persons who are to appear in person to give evidence, and who are subjected to cross-examination. 10. The internal investigator will hopefully be presented as a witness, and will explain to the Court the circumstances of the statements recorded from Kanyeki, Mwangi and Murage, and why they were not called as witnesses at any forum. 11. The statements can remain on record as part of the Respondent’s internal investigation record, and whether the authors should be called as witnesses, is entirely for the Respondent to determine. They could be helpful to the Respondent, in showing that investigation was carried out. They do not on their own, answer the substantive issues in dispute. 12. Without the authors appearing before the Court, their statements cannot be taken to be witness statements, and cannot be given the same probative value, as evidence by witnesses appearing before the Court. The Court cannot, and will not determine substantive issues in dispute, by putting reliance on what Kanyeki, Mwangi and Murage may have said outside the Court. **IT IS ORDERED**: - 1. **The objection raised by the Claimant is declined.** 2. **The Claim be rescheduled for full hearing.** Dated, signed and delivered electronically at Nakuru, under Rule 68 [5] of the E&LRC [Procedure] Rules, 2024, this 30th July 2026. James Rika Judge