Export Processing Zones Authority Kenya & another v Fanuel Odede Kidende & 2 others [2020] KECA 664 (KLR)
The bottom line
#Kenya's Court of Appeal paused an employment case because deciding fraud allegations without hearing live witnesses would risk an unfair result.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raises an arguable point
Yes. The allegation of fraud and forgery deposed in the replying affidavits, and whether such contested issues can be determined on affidavits and written submissions rather than by oral hearing, constitutes an arguable point.
The court noted the intended appeal had not yet been filed because the trial court's file remained with the judge pending judgment. It therefore discerned arguability from the matters deposed in the replying affidavits of Paul Gicharu and Peter Munya, which make allegations of forgeries and fraud. Whether those contested issues can be determined by affidavits and written submissions, or require oral evidence and cross-examination, is a point deserving determination in the intended appeal.
Whether the intended appeal would be rendered nugatory if stay of proceedings is not granted
Yes. Delivery of judgment without a viva voce hearing on contested allegations of fraud risks a miscarriage of justice, and it is in the public interest that parties be given an equal chance to call witnesses and ventilate all issues.
The court reasoned that a fair hearing is a constitutional imperative under Articles 25(c), 27 and 50 of the Constitution. Evidence is required to test contested material facts on allegations of fraud; rendering judgment on written submissions alone might cause a miscarriage of justice. A viva voce hearing is not prejudicial to parties since all get an equal chance to call witnesses, and appealing after judgment would be less effective than forestalling the situation.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal (or intended appeal) is arguable and that it will be rendered nugatory unless the order of stay sought is granted.
- The Court of Appeal is reluctant to stay proceedings in a lower court as a matter of course, but will do so where it is demonstrated that the appeal would be rendered nugatory if stay is not granted.
- An arguable point is not one that must necessarily succeed, but one which merits full argument before the appellate court.
Court orders
#- 1.Stay of proceedings in Petition No. 110 of 2018 before the Employment and Labour Relations Court pending the hearing and determination of the intended appeal
- 2.The intended appeal to be filed and served within ninety (90) days from the date of the ruling
- 3.Costs of the application to be costs in the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- PE T. No. 110 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to stay proceedings pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nehemiah Kipkorir Terer & 3 others v National Police Service Commission & 2 others [2021] KEELRC 53 (KLR)[2021] KEELRC 53 (KLR)14 Dec 2021
Cite this brief
#Cite this brief
Caselaw, "Export Processing Zones Authority Kenya & another v Fanuel Odede Kidende & 2 others [2020] KECA 664 (KLR)", Case Analysis (2020). Civil Application No. 352 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/664/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.