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Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the extract· [2018] KEELRC 3 (KLR)

Jens Rehm v Zhongfa Asia Africa Hotels Company Limited [2018] KEELRC 3 (KLR)

Employment and Labour Relations Court
19 December 2019
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi by Byram Ongaya, J, delivered on 19 December 2019, on a notice of motion dated and filed on 18 November 2019 by the respondent in the main suit, through Wambugu & Muriuki Advocates. The applicant sought leave to recall the claimant's witness for cross-examination and leave to reopen its case and call its witnesses, with costs in the cause. The application was supported by an affidavit of Emmanuel Eredi Advocate, who deponed that his client had instructed him the suit had been concluded, and that the advocates were ill prepared on the hearing date of 29 October 2019. The claimant opposed the application through a replying affidavit, urging it was malicious, incompetent and an abuse of process, noting that the case was over five years old and that counsel for the applicant had already cross-examined the claimant. The Court held that the supporting affidavit was largely hearsay because the client did not swear it; that the applicant's position was misconceived since a hearing notice had been served; and that the witnesses sought to be re-examined had in fact been duly re-examined, making the application an abuse of Court process. Applying Rule 14(8) of the ELRC (Procedure) Rules, the Court found the applicant had failed to notify witnesses and file witness statements. Following its own ruling in Yaron Gurevich v Carnation Plants Limited [2019] eKLR, the Court reiterated that parties will not be allowed to prosecute cases by instalment, and that such belated applications are inconsistent with section 3 of the ELRC Act, 2011, which requires just, expeditious and proportionate resolution. The application was dismissed with costs, and the parties were directed to take directions forthwith for the expeditious determination of the suit.

Key legal issues

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01

Whether the respondent could reopen its case and recall witnesses after the claimant had closed his case

Holding

The application was refused as belated, an abuse of process, and prejudicial to the claimant.

Reasoning

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.

p. 2
02

The weight of the advocate's affidavit over the client's instructions

Holding

The supporting affidavit of the advocate was largely hearsay because the client did not swear an affidavit.

Reasoning

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.

p. 1
03

Case management and avoidance of piecemeal litigation

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated and filed on 18.11.2019 is dismissed with costs
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.