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ELRCAllowedApplication arising from Appeal No. E171 of 2021· [2022] KEELRC 659 (KLR)

Njoroge & Musyoka Advocates & 3 others v Evelyne Wamai [2022] KEELRC 659 (KLR)

Employment and Labour Relations Court
24 February 2022
4,132 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court paused a lower court case because closing a party's defence without their key witness violated their constitutional right to be heard.

What this practically means

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Executive summary

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By notice of motion dated 23rd December 2021, the Applicants/Appellants sought stay of proceedings and of a ruling delivered on 23rd November 2021 by Hon. E. Wanjala (PM) in Milimani CMEL Case No. 372 of 2020, pending the hearing and determination of Appeal No. E171 of 2021. The impugned ruling closed the Applicants' defence case without their key witness, the 3rd Applicant, testifying; she deposed that she resides in the United States and could not attend the virtual hearing due to work schedules and time differences. The Respondent opposed, portraying the Applicants as perennial defaulters who had delayed the suit since 2020, and argued they had not demonstrated a prima facie case or irreparable prejudice, and that no proper appeal lay without a decree. The Court framed a single issue: whether stay of proceedings pending appeal was merited. It held that adjournments are governed by Order 17 Rule 1 of the Civil Procedure Rules and are matters of judicial discretion requiring sufficient cause. Applying Mandeep Chauhan and Union Insurance Co. of Kenya Ltd, it found that the denial of the adjournment and closure of the defence case denied the Applicants the right to be heard, a cardinal principle of natural justice. Applying the Betheul Muiruri Benjamin principles, the Court found a prima facie arguable case in the memorandum of appeal, expeditious filing, and that the interests of justice favoured stay notwithstanding the Applicants' delay. The application was allowed: all proceedings in CMEL Case No. 372 of 2020 were stayed pending appeal, costs were reserved to the appeal, and the Appellants were given 90 days to move the Court to hear the appeal, failing which the Respondent may apply for its dismissal.

Key legal issues

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01

Denial of adjournment and closure of the defence case

Holding

The trial court's closure of the defence case without the key witness's testimony denied the Applicants the right to be heard, a cardinal principle of natural justice.

Reasoning

The Applicants' witness resided in the United States in a different time zone and could not attend virtually; counsel had communicated the difficulty to the Respondent's counsel and to the Court. Because liability would crystallize on individuals including the witness, denial of the adjournment violated the right to a fair hearing under the Constitution.

p. 6
02

Threshold for stay of proceedings pending appeal

Holding

The Applicants satisfied the three principles in Betheul Muiruri Benjamin v Development Bank of Kenya: prima facie arguable case, expeditious filing and interests of justice.

Reasoning

The memorandum of appeal raised arguable points of law regarding closure of the defence case; the appeal was filed on or before 22nd December 2021 and the application expeditiously; and refusal would result in the Applicants being condemned unheard, contrary to Article 50 of the Constitution.

p. 6

Legal principles established

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  • Closure of a party's defence case implicates the constitutional right to fair hearing, and delay alone does not justify denial of an opportunity to be heard unless conduct is contumacious.
  • An arguable appeal does not need many points; a single bona fide arguable issue suffices.
  • Adjournments are a matter of judicial discretion exercisable where sufficient cause is shown.

Court orders

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  1. 1.Stay of all proceedings in Milimani Commercial Chief Magistrate CMEL Case Number 372 of 2020 pending the hearing and determination of Appeal No. E171 of 2021
  2. 2.Costs of the application to be in the appeal
  3. 3.Appellants granted 90 days to move the Court to hear the appeal; in default the Respondent has liberty to apply for its dismissal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 59
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 17 Rule 1
  • Civil Procedure RulesOrder 7(6) Rule 1
  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B; Section 79G

Cases cited (14)

  • Judicial Service Commission v Gladys Boss Shollei
    [2014] eKLR
  • Mandeep Chauhan v Kenyatta National Hospital & 2 others
    [2013] eKLR
  • Kenya Commercial Bank Limited v Titus Kilonzo Mutua T/A Mbwala Agencies & 16 others
    [2014] eKLR
  • Betheul Muiruri Benjamin v Development Bank of Kenya
    [2006] eKLR
  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR
  • John Njue Nyaga v Nicholas Njiru Nyaga & another
    [2013] eKLR
  • Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others
    [2015] eKLR
  • Republic v Rosemary Wairimu Exparte Applicant v Ihururu Dairy Farmers Co-operative Society Limited
    [2021] eKLR
  • Famous Cycle Agencies Ltd & 4 Others v Masukhalal Ramji Karia
    [1995] IV KALR
  • Mbithuka Titus v Jackline Mutindi
    [2020] eKLR
  • The Management of Committee of Makondo Primary School and Anotr v Uganda National Examination Board
    HC Civil Misc Applic No. 18 of 2010
  • Union Insurance Co. of Kenya Ltd. v Ramzan Abdul Dhanji
    Nairobi Civil Application No. 179 of 1998
  • Tea Growers Association & another v Kenya Plantation & Agricultural Workers Union
    [2012] eKLR
  • Naivas Company Limited v Paul Thuku Gachora
    [2017] eKLR
On appeal from
Milimani Chief Magistrate's Court (Commercial, CMEL)
CMEL Case Number 372 of 2020
Jurisdiction invoked
Appellate jurisdiction over appeals from the subordinate court in employment matters (Employment and Labour Relations Court Act), stay pending appeal sought under Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge & Musyoka Advocates & 3 others v Evelyne Wamai [2022] KEELRC 659 (KLR)", Case Analysis (2022). Application arising from Appeal No. E171 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/659/eng@2022-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.