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ELRCPartially AllowedPetition dated 15th February, 2021 (Motion dated 29th June, 2021)· [2022] KEELRC 897 (KLR)

University Academic Staff Union, Maseno Chapter v Maseno University [2022] KEELRC 897 (KLR)

Employment and Labour Relations Court
3 February 2022
1,925 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's employment court let the Teachers Service Commission file extra documents despite a missed hearing, but refused oral testimony, keeping the dispute on written submissions.

What this practically means

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Executive summary

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This ruling by Baari J of the Employment and Labour Relations Court at Kisumu determines a Notice of Motion dated 29th June 2021 in which the Teachers Service Commission (Applicant/Respondent) sought review, variation and/or setting aside of the court's directions of 31st May 2021, which directed that the petition dated 15th February 2021 be determined on written submissions with a judgment date fixed. The Applicant contended that its counsel, Ms. Akinyi, was absent when the directions were issued, that counsel holding her brief lacked instructions, that disputed facts required viva voce evidence, and that it needed to file additional documents including Adhoc committee deliberations and minutes of consultative meetings. The Respondent/Petitioner opposed, arguing the application failed the review thresholds in Rule 33(1)(a) of the ELRC (Procedure) Rules and that the documents sought had long been in the Applicant's custody. The court confirmed from the coram that Mr. Oluoch held Ms. Akinyi's brief. It declined to hold the Legal/Court Assistant's mistake against the Applicant, invoking Article 50(1) fair-hearing rights, and found the procedural rules cited against the application inapplicable. The application was allowed in part: the petition was to remain determined on written submissions (not viva voce evidence), but the Applicant was given 14 days to file additional documents, the Petitioner corresponding leave to reply, and both parties 14 days each for submissions, with a mention to confirm compliance. Costs were not addressed in the orders.

Key legal issues

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01

Whether an application for review of hearing directions met Rule 33(1)(a) of the ELRC (Procedure) Rules

Holding

The court did not apply Rule 33(1)(a), finding the rules cited as the basis for refusing the application inapplicable and instead resting the decision on the interest of justice and fair-hearing considerations.

Reasoning

The court held that the procedural rules invoked against the Applicant were inapplicable, relying on Ahad v CJE (2019) eKLR. It found that the directions did not tie the court's hands for the life of the case and that allowing the Applicant an opportunity to file additional documents would facilitate a just and expedient resolution. The court exercised discretion in favour of a fair hearing rather than a strict review-threshold analysis.

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02

Whether a mistake by counsel's court assistant in arranging representation should be visited on the party

Holding

The court declined to hold the Legal/Court Assistant's mistake against the Applicant, anchoring the decision on Article 50(1) fair-hearing rights.

Reasoning

The Applicant's counsel was absent on the date the directions were issued, her brief having been held by Mr. Oluoch at the request of the Applicant's court assistant. The court found that the counsel's absence was established from the coram, and that holding the assistant's mistake against the Applicant would infringe the constitutional right to a fair hearing under Article 50(1).

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Legal principles established

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  • Directions on the mode of hearing are procedural and should not override a party's right to a fair hearing; a party may file additional documents with leave at any stage before judgment.
  • A party may file additional documents upon close of pleadings and at any stage before judgment, with the leave of the court.

Court orders

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  1. 1.The orders issued on 31st May, 2021 are varied
  2. 2.The Petition shall be heard and determined by way of written submissions as earlier directed
  3. 3.The Applicant/Respondent has 14 days from the date of the ruling to file any additional documents it may wish to file in relation to the petition
  4. 4.The Petitioner will have corresponding leave to file a reply if they so wish within 14 days of receipt of the Applicant/Respondent's documents
  5. 5.Both parties will thereafter have 14 days each to file their submissions starting with the Petitioner
  6. 6.The matter to be mentioned on a date to be assigned after delivery of the ruling, to confirm compliance and fix a judgment date

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3, 12, 16, 20(1)(4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Sections 28 and 33; Rule 33(1)(a)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Sections 19, 20(1)(a), (3), 21, 25 and 20
  • Constitution of Kenya, 2010Articles 50(1) and 50(2)

Cases cited (6)

  • Muindi Kimeu & 3,285 others v Kenya Pipeline Company Ltd & Another
    (2021) eKLR
  • Gerald Macharia v Samuel Murimi
    (2016) eKLR
  • Menginya Salim Murgani v Kenya Revenue Authority
    (2014) eKLR
  • Tokesh Mambili & Others v Simion Litsanga
    (2004) eKLR
  • Ajit Kumar Rath v State of Orisa & 9 others
    9 Supreme Court Cases 596 at page 608
  • Ahad v CJE
    (2019) eKLR
Jurisdiction invoked
Sections 3, 12, 16, 20(1)(4) of the Employment and Labour Relations Court Act; Sections 28 and 33 of the ELRC (Procedure) Rules 2016; Sections 19, 20(1)(a), (3), 21 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Article 50(2) of the Constitution

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, "University Academic Staff Union, Maseno Chapter v Maseno University [2022] KEELRC 897 (KLR)", Case Analysis (2022). Petition dated 15th February, 2021 (Motion dated 29th June, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/897/eng@2022-02-03

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