Jackline Ng’ongo Nyadeje v Board of Trustees,KCA University [2019] KEELRC 2082 (KLR)
The bottom line
#Kenya's Employment Court dismissed a worker's bid to disqualify the judge and exclude the employer's evidence, confirming late documents won't be rescued.
What this practically means
#Executive summary
#Key legal issues
#Recusal of the judge
Recusal application dismissed; no real possibility of bias established
The Court applied the fair-minded and informed observer test for bias. The Claimant alleged bias from the Court's refusal to admit her documents and from the file being handled after Nduma J's transfer. The Court explained that the file came to it because the Respondent had filed an application to amend the Response, that parties agreed to the amendments, and that reopening for evidence during the service week was impracticable. Alleged misdirection on document admission should be challenged through proper channels, not recusal.
Expunging the Respondent's witness evidence for lack of a practising certificate
Evidence retained; the Human Resource Management Professional Act, 2012 does not define 'practice', and the witness testified as an employer
Section 29(1) of the HR Management Professional Act, 2012 requires a practising certificate, but the Act, unlike the Advocates Act, does not define the parameters of practice. The witness was the Director of Human Resources testifying from the Respondent's records about matters in dispute. She therefore testified as an employer under section 2 of the Employment Act, 2007, making certification immaterial to admissibility.
Re-admission of the Claimant's expunged documents
Leave to rely on the expunged management accounts refused
The documents had been filed on 18 October 2018 by the Claimant and were expunged on the Respondent's advocate's application because they were filed and served after the Claimant had closed her case. The Court held the Claimant, who knew of the documents all along, could not complain of their exclusion and was being disingenuous in seeking their re-admission.
Legal principles established
#- A party seeking recusal must demonstrate that a fair minded and informed observer would conclude there was a real possibility of bias
- A witness testifying as an employer under section 2 of the Employment Act, 2007 need not hold an HR practising certificate for their evidence to be admitted
Court orders
#- 1.The application dated 19 December 2018 dismissed with costs to the Respondent
- 2.Claimant to file and serve submissions on or before 20 March 2019 and Respondent on or before 25 March 2019
- 3.Judgment to be delivered on 26 March 2019
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the Employment Cause; ruling on an interlocutory motion within the pending Cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackline Ng’ongo Nyadeje v Board of Trustees,KCA University [2019] KEELRC 2082 (KLR)", Case Analysis (2019). Employment Cause (unspecified on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2082/eng@2019-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.