Fondo & another v Commission for Human Rights and Justice & another (Civil Appeal E40 of 2021) [2023] KECA 927 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a court cannot amend a Kilifi official's appointment letter because that issue was never raised or argued by the parties.
What this practically means
#Executive summary
#Key legal issues
#Determination of unpleaded issues
The trial court erred in granting a declaration amending the appointment letter when that issue was not in the pleadings and the parties were not heard on it
Pleadings define and delimit the matters in controversy and give fair notice of the case to be met. A court has no power to make an order outside the pleadings unless by consent. An unpleaded issue may only be determined where evidence is led and it appears the issue was left to the court; that was not the case here. The declaration was therefore reversible error.
Right to be heard in constitutional litigation
Enforcement of the Constitution does not excuse violation of the right to a hearing; Article 22(3)(d) requires observance of rules of natural justice
The 1st respondent argued the trial court was safeguarding the Constitution. The court held that constitutional enforcement is itself subject to natural justice: the court cannot be unreasonably restricted by procedural technicalities but equally cannot enforce the Constitution while violating the right to a hearing. The parties were denied an opportunity to address the amendment issue.
Legal principles established
#- A court cannot determine or grant relief on an issue not raised in the pleadings and not left to the court by the parties; an order made outside the pleadings without hearing the parties is a nullity and cannot stand
- A court cannot enforce the Constitution while violating the right to be heard; procedural fairness prevails even in constitutional litigation
Court orders
#- 1.Appeal allowed
- 2.Judgment of the Employment and Labour Relations Court in Malindi ELRC Petition No E001 of 2020 dated March 12, 2021 set aside to the extent that it declared the letter Ref No CG/KLF/OG/VOL.1 dated October 14, 2020 amenable to correction in clause 1
- 3.No order as to costs
- On appeal from
- Employment and Labour Relations Court, Malindi
- ELRC Petition No E001 of 2020
- Jurisdiction invoked
- First appeal to the Court of Appeal (first appellate court duty to re-evaluate evidence and law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fondo & another v Commission for Human Rights and Justice & another (Civil Appeal E40 of 2021) [2023] KECA 927 (KLR)", Case Analysis (2023). Civil Appeal of the Court of Appeal at Mombasa (arising from ELRC Petition No E001 of 2020, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/927/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.