PM v TK (Tribunal Case 32 of 2019) [2021] KEHAT 671 (KLR) (25 June 2021) (Ruling)
Neutral citation:
[2021] KEHAT 671 (KLR)
Republic of Kenya
Tribunal Case 32 of 2019
H Namisi, Chair, M. Ng’ania, Justus T. Somoire, M. Ndonga, AM Diriye, T Jama & D Jemator, Members
June 25, 2021
Between
PM
Claimant
and
TK
Respondent
Ruling
A. Introduction
1.The Claimant’s Notice of Motion dated the 18th of May 2021 seeks the following orders:i.THAT the Honourable Tribunal do grant leave for the Claimant to adduce evidence being screenshot for Whatsapp conversation between the Respondent and a holder of Telephone number +254726228614.ii.THAT the Honourable Tribunal do issue an order for witness summons for the holder of above number +254726228614 RASHID CHEMONGES to appear before court to give evidence on the said conversation between himself and the Respondent.iii.THAT costs of this application be provided for.
2.The Application is supported by an Affidavit sworn by P.M, the Claimant, and premised on the following grounds:a.The Claimant lodged this instant claim against the Respondent and the Court had issued directions for parties to try and settle the matter amicably;b.The parties met in view of negotiating the matter but unfortunately the parties could not reach an agreement hence the negotiations broke down;c.The Claimant subsequently started to receive messages from a Telephone Number +254726228614 on her whatsapp;d.The said messages were all in relation to this instant case and the negotiations that had broken down and the said number had been mentioned numerously in this suit by the Respondent alleging that the same belonged to the Claimant;e.The prayers sought will not prejudice the rights of the Respondent but once given they will shed more light to this case and assist the Tribunal in reaching an informed decision.
3.In response thereto, the Respondent filed the Grounds of Opposition dated the 25th of May 2021 which raised the following grounds:I. That the Application is misconceived, incompetent and bad in law;II. The Application is frivolous, vexatious and scandalous and is an abuse of the process of this Tribunal for the reasons that the purported evidence;a.Is very evidently, hearsay evidence;b.Is of dubious credibility; andc.Is not evidence that was pre-existing during the cause of the trial and can only be, if at all, the basis for another course of action altogether.III. The Application is a misguided attempt to patch up a weak case and it otherwise devoid of merit and ought to be dismissed with costs to the Respondent.
B. Issues for Determination
4.Having analysed the evidence and considered the submissions filed, the main issue that falls for determination by this Tribunal is whether there is sufficient cause for the Tribunal to grant leave to the Claimant to adduce new evidence and issue an order of witness summons.
C. Analysis
5.In considering the Application before the Tribunal, it is important to review the events leading up to this Application.
6.On the 15th of June 2020, the Claimant herein approached this Honourable Tribunal seeking several reliefs, amongst them damages for pain and suffering occasioned by the Respondent’s actions of discrimination on the basis of the Claimant’s HIV status. The Tribunal advised that since the parties are related and belong to one family, they should attempt to settle the matter out of court but from what is stated by the parties, it seems that negotiations were unsuccessful.
7.The hearing of the Claim was conducted on the 5th of February 2021, and both parties closed their respective cases. The present Application was brought after the hearing by both parties was concluded and their respective cases closed and the only issue that was pending was filing of submissions.
8.In the present Application, the Claimant states that on or about the 28th of May 2021, together with her Advocate, she approached the Respondent’s Advocate in a bid to try and resolve the matter at hand. However, the said meeting was not fruitful.
9.The Claimant further alleges that after the meeting with the Respondent and on the 5th of May 2021, she started receiving messages from telephone number+254726228614 on her whatsapp with respect to the negotiations that they had with the respondents.
10.The Claimant stated that during the hearing of this matter, the phone number+254726228614 was mentioned numerously by the Respondent whereby he alleged that the said phone number belonged to the Claimant.
11.In order for us to ascertain whether the Application can be allowed at this present stage, we need to examine what the courts have stated in similar cases.
12.In the case of Samwel Kiti Lewa v Housing Finance Co. of Kenya Ltd & Another {2015} EKLR the Hon. Lady Justice Kasango rendered thus:
13.In addition, in the case of Raindrops Limited v County Government of Kilifi [2015] eKLR cited the case of Cason v State 140 MD App 379 (2001) espouses the principles of re-opening a case as;
14.With the above principles in mind, it is prudent for the Tribunal to consider the weight and significance of the evidence sought to be adduced so as to determine whether it meets the principles laid down in the Raindrops Case (supra).
15.From the proceedings before us, it is indeed true that the Respondent testified that the Claimant was communicating with him through the telephone Numbers +254 726228614 and +254 719 843 974 vide the WhatsApp platform.
16.The Tribunal, therefore, perused the screenshots attached to the Claimant’s Affidavit sworn on 18th May 2021 and marked PM1. However, the messages seem to emanate from someone called “Kim”. The number +254 726228614 does not feature anywhere in the screenshots and we are, therefore, unable to decipher whether the messages were sent by the Respondent as alleged.
17.Furthermore, it is impossible for us to establish who received these messages and when were they were sent to the recipient. The onus is on the Claimant to demonstrate to this Tribunal that the telephone number +254 726228614 was used to send the messages to her.
18.Be that as it may, the Tribunal has a duty to examine the evidential value of these WhatsApp messages marked PM1 to the Claimant’s case. The present claim is pegged on grounds of discrimination and harassment by the Respondent against the Claimant on account of her HIV status. We, therefore, wish to examine the contents of the messages in the exhibit PM1 and establish whether they have any bearing to the issues before this Tribunal.
19.A cursory look at the WhatsApp messages by the said “Kim” do not disclose any form of discrimination, neither do they mention the Claimant’s status. They are purely insults that, in our view, do not add any value to the Claimant’s case. In addition, the messages do not talk about any meeting that was held between the parties, neither do they mention any names related to any of the parties in this matter. It is, therefore, very clear to us that the messages contained in exhibit PM1 do not have any bearing or relevance to the case that is pending before us.
20.It is imperative to note that the burden of proof was on the Claimant to provide the link between the messages and the Respondent but unfortunately she has been unable to demonstrate the direct linkage between the person called “Kim” in the exhibit marked PM1 and the Respondent. She has also failed to provide the link between the contents of the messages in PM1 to the facts of this case and therefore her claim fails.
21.In the same breath, Article 159(2) of The Constitution also provides that courts and tribunals should be guided by the principle that justice should be administered without delay. Article 50 of the Constitution provides for the right to a fair hearing, which also stipulates that a trial should begin and conclude without unreasonable delay. This provision applies to both the Claimant and the Respondent herein.
22.From the record, the trial on merit is concluded and a decision on the claim is scheduled to be pronounced by the Tribunal once the parties file their respectivesubmissions. Therefore, we urge the parties to try and comply with the Tribunal’s directions and file their respective submissions within the agreed timelines to enable us render our judgement.
D. Conclusion
23.We, therefore, dismiss this Application and noting the circumstances of this application, each party shall bear his/her own costs. The Tribunal shall proceed and issue its judgement on the basis of the evidence on record.
24.It is so ordered.
Dated and signed at Nairobi this 25th day of June, 2021. Delivered virtually at Nairobi this 25th day of June, 2021.In the presence of:Mr. Mosioma for the Claimant/ApplicantMr. Mureithi h/b Mr. Thiga for the Respondent
1| P a g e
| Helene Namisi (Chairperson)Melissa Ng’ania | …...…………………………..……..…….…………............. |
| Justus T. Somoire | ….….. ……………………….. |
| Dr. Maryanne Ndonga | ………………..………............... |
| Abdullahi Diriye | ………………..…………………. |
| Tusmo Jama | …………. ……………………….. |
| Dorothy Jemator | ……………………………….. |