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ELRCDismissedCause No 1420 of 2016· [2023] KEELRC 2997 (KLR)

Kariuki v Trustees of Premier Academy Charitable Trust t/a Premier Academy (Cause 1420 of 2016) [2023] KEELRC 2997 (KLR)

Employment and Labour Relations Court
23 November 2023
665 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employment court refused to restart a seven-year-old case just because the judge and lawyer had changed, ruling the existing record stands.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi delivered virtually by Linnet Ndolo J on November 23, 2023, in a 2016 employment claim. The claimant's case had been heard by Makau J on June 17 and June 21, 2021, and the matter came to Ndolo J at the defence stage. The respondent filed an application dated September 5, 2023, supported by an affidavit of its Human Resource Manager, Tabitha Kimani, seeking that the claimant be recalled to the witness stand and the hearing commence afresh, relying on section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules. The respondent argued that the change of trial Judge and the departure of its former advocate (appointed as a Judge) meant material facts may have been lost and no prejudice would be suffered. The claimant opposed through Grounds of Opposition and a Replying Affidavit, contending the application was mischievous and meant to delay a seven-year-old claim contrary to Article 50 of the Constitution. The Court agreed the matter had taken too long, holding that the transfer of a trial Judge or change of counsel, without more, cannot justify a hearing de novo, since the court is a court of record and the record taken by Makau J is intact. The application was declined with costs in the cause, and the Court directed that Makau J's proceedings be typed and availed to the parties within fourteen days.

Key legal issues

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01

Whether a fresh hearing should be ordered due to change of trial judge and counsel

Holding

The application was declined; the record taken by Makau J remains intact and there is no reason to begin the trial afresh

Reasoning

The respondent relied on section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules to seek recall of the claimant, citing a new trial Judge and new counsel. The Court held that this is a 2016 matter which has taken too long, that the court is a court of record, and that transfer of a judge or change of counsel without more cannot justify a de novo hearing. The proceedings recorded by Makau J were ordered typed and availed within fourteen days.

p. 2

Legal principles established

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  • Transfer of a trial Judge or change of counsel, without more, cannot justify commencing a hearing de novo, as the court is a court of record and the record remains intact

Court orders

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  1. 1.The respondent's application dated September 5, 2023 is declined with costs in the cause
  2. 2.The proceedings recorded by Makau J to be typed and availed to the parties within fourteen (14) days from the date of the ruling

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Evidence ActSection 146(4)
  • Civil Procedure RulesOrder 18 rule 10
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC (interlocutory application under section 146(4) of the Evidence Act and Order 18 rule 10 of the 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, "Kariuki v Trustees of Premier Academy Charitable Trust t/a Premier Academy (Cause 1420 of 2016) [2023] KEELRC 2997 (KLR)", Case Analysis (2023). Cause No 1420 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2997/eng@2023-11-23

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