Njoroge & Musyoka Advocates & 3 others v Evelyne Wamai [2022] KEELRC 659 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Denial of adjournment and closure of the defence case
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.
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.
Threshold for stay of proceedings pending appeal
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application to be in the appeal
- 3.Appellants granted 90 days to move the Court to hear the appeal; in default the Respondent has liberty to apply for its dismissal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.