Kimenyi v Permanent Secretary, Ministry of Planning & another; Kimenyi & another (Claimant) (Legal Representatives of the Claimant - Now Deceased)) (Cause 1716 of 2014) [2024] KEELRC 1088 (KLR)
The bottom line
#Kenya's Employment Court ruled that the constitutional right to a fair hearing does not let parties introduce surprise witnesses on the eve of a trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Respondent should be permitted, on the eve of hearing, to introduce and call a witness whose statement was dated 5th April 2024 and served late, on the basis of the right to a fair hearing under Articles 50 and 25 of the Constitution
Key legal issues
#Whether the constitutional right to a fair hearing (Articles 50(1) and 25(c)) obliged the court to admit a late-served witness
The application was denied; the right is subject to parameters and does not permit a party who long maintained it would call no witness to spring a surprise witness on the eve of hearing
The court weighed the 1st Respondent's invocation of Articles 50 and 25 against the procedural history: the 1st Respondent had all along maintained it would not call a witness, implying the 2nd Respondent was the responsible entity. The proposed witness statement was overbroad, capable of raising suspicion about its provenance, and merely reproduced documents already in the Claimant's and 2nd Respondent's bundles. Permitting such a surprise would lead parties into uncharted territory where anyone could propose an additional witness on the eve of judgment.
Legal principles established
#- The right to a fair trial under Articles 50 and 25 does not entitle a party who has foregone the chance to present a witness to introduce one belatedly on the eve of hearing; fair hearing rights operate within parameters
Court orders
#- 1.The application by the 1st Respondent seeking to introduce a witness is denied
- 2.Directions as to hearing to be issued immediately after the Ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; fair hearing rights under Articles 50(1) and 25(c) of the Constitution invoked by the parties
Relief refused
#1st Respondent's oral application to allow a witness (with statement dated 5th April 2024) to appear and testify
Late introduction on the eve of hearing; the right to a fair trial has parameters and cannot be used to wax hot and cold; the proposed statement was overbroad and of questionable provenance; the documents sought to be introduced were already in the parties' bundles; allowing it would set a precedent of parties springing surprise witnesses
Costs
No costs order made
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The right to a fair trial does not presuppose a scenario where one waxes hot and cold.
Indeed, the Court finds the statement by the proposed witness for the 1st Respondent overbroad and to an extent capable of raising suspicion about its provenance.
Fair trial does not mean foregoing your chance to present a witness and then after hearing other witnesses testify decide you want to avail a witness.
The application by the 1st Respondent seeking to introduce a witness is denied. Directions as to hearing will be issued immediately after this Ruling.
Issues in the judgment
#The judgment records the 1st Respondent relying on Article 50(1) and the 2nd Respondent's counsel citing Article 25(c), but the court's ruling refers generally to 'Article 50 and 25 of the Constitution'; no case number, neutral citation, or case title is stated in the excerpt, and no costs order was made.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimenyi v Permanent Secretary, Ministry of Planning & another; Kimenyi & another (Claimant) (Legal Representatives of the Claimant - Now Deceased)) (Cause 1716 of 2014) [2024] KEELRC 1088 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1088/eng@2024-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.