Samuel Aloys Moturi v E.A.N Kenya Limited & another [2019] KEELRC 86 (KLR)
The bottom line
#Kenya's Employment Court refused to remove a company from a long-running employment case, ruling it is a necessary party and objections about evidence can wait for trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit discloses a reasonable cause of action against the 2nd Respondent
It does; the Special Report's contents prima facie link the 2nd Respondent to the 1st Respondent's assets, members and goodwill
The claimant enjoined the 2nd Respondent on the basis of a Special Report intended to be produced at trial. The 2nd Respondent admitted the original report exists but challenged its admissibility as secondary evidence. The court held the admissibility objection was premature since discovery and pre-trial had not been done, and that the Report's contents, especially the Background Information, disclosed a reasonable case against the 2nd Respondent.
Whether the 2nd Respondent is a necessary party
Yes; necessary so the court can settle all questions including whose assets may be attached in execution
Having found a reasonable cause of action disclosed against the 2nd Respondent, and considering the Special Report excerpt indicating transfer of EAN Kenya's assets, members, staff, goodwill and directors to GSI Kenya, the court held the 2nd Respondent's presence is necessary for effective adjudication, including determining whose assets should be attached to satisfy any decree in the claimant's favour.
Admissibility of the Special Report as secondary evidence under sections 68 and 69 of the Evidence Act
Objection premature; admissibility remains open at pre-trial or trial
The 2nd Respondent contended the Report was secondary evidence requiring notice under section 69. The court held the objection was premature because discovery and pre-trial procedures had not been concluded, and the claimant had not yet been able to serve a notice to produce. Article 50(4) on improperly obtained evidence was noted but the admissibility question was left for later stages.
Legal principles established
#- Where the original document is in the possession or power of the person against whom it is sought to be proved, secondary evidence may be given under section 68(1) of the Evidence Act, subject to the notice procedure under section 69
- An application challenging admissibility of evidence before discovery and pre-trial are concluded is premature - a cart before the horse
Court orders
#- 1.Dismissed the Notice of Motion dated 11.2.2019 seeking to strike out the 2nd Respondent from the suit
- 2.Costs of the application to the claimant
- 3.Declared that the issue of admissibility of the Special Report remains open to be raised during pre-trial hearing or trial
- Jurisdiction invoked
- Order 1 Rule 10(2) Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Aloys Moturi v E.A.N Kenya Limited & another [2019] KEELRC 86 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/86/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.