Jens Rehm v Zhongfa Asia Africa Hotels Company Limited [2018] KEELRC 3 (KLR)
The bottom line
#Kenya's Employment Court refused an employer's late bid to reopen its case, confirming courts will not tolerate piecemeal litigation or skipped procedural rules.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent could reopen its case and recall witnesses after the claimant had closed his case
The application was refused as belated, an abuse of process, and prejudicial to the claimant.
The Court found the application rested on a misconceived belief that the suit had been concluded, whereas a hearing notice had been served. The witnesses sought to be re-examined had already been duly re-examined. The applicant failed to comply with Rule 14(8) on witness notification and witness statements, offered no reasonable excuse, and sought to reintroduce evidence that would change the character of the suit, prejudicing a claimant who had closed his case in a matter over five years old.
The weight of the advocate's affidavit over the client's instructions
The supporting affidavit of the advocate was largely hearsay because the client did not swear an affidavit.
Emmanuel Eredi Advocate deponed to the client's instructions that the case had been concluded, as allegedly communicated by previous advocates on record. The Court noted there was no explanation why the client did not swear the affidavit itself, and held that information conveyed second-hand by an advocate about a client's instructions amounts largely to hearsay and carries little probative weight.
Case management and avoidance of piecemeal litigation
Allowing the introduction of massive evidence or reopening a case mid-hearing is inconsistent with the just, expeditious and proportionate resolution of disputes under section 3 of the ELRC Act, 2011.
Following its own earlier ruling in Yaron Gurevich v Carnation Plants Limited, the Court held that admitting massive evidence after hearings are underway allows parties to shift and re-shift the character of their cases, defeats pre-trial case management, and prejudices the opposing party. Section 3 of the ELRC Act requires just, expeditious and proportionate resolution of disputes, which belated reopening applications undermine.
Legal principles established
#- A party must notify the Court and the other party of witnesses and file witness statements as required by Rule 14(8) of the ELRC (Procedure) Rules, and failure to comply cannot be cured by a belated application to reopen a case after the opposing party has closed its case.
- Parties will not be allowed to prosecute their cases by instalment so as to defeat the purposes of pleading and pre-trial case management rules.
Court orders
#- 1.The application dated and filed on 18.11.2019 is dismissed with costs
- 2.The parties to take directions forthwith for the expeditious determination of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 and the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jens Rehm v Zhongfa Asia Africa Hotels Company Limited [2018] KEELRC 3 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/3/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.