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ELRCDismissedNot stated in judgment· [2023] KEELRC 3034 (KLR)

Board of Management, Nyanchwa Preparatory School & another v Denis (Appeal E038 of 2023) [2023] KEELRC 3034 (KLR)

Employment and Labour Relations Court
29 November 2023
RSRadido Stephen
1,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Kisumu against a ruling of a Senior Principal Magistrate delivered on 14 March 2023 declining the Appellants' application for an adjournment of their defence hearing, on the ground that they had already been granted a last adjournment and had not filed witness statements. An application for leave to appeal was refused on 17 March 2023, but this Court granted leave on 8 June 2023 with a direction to deposit the decretal sum, and the appeal was lodged on 24 July 2023. The Appellants raised seven grounds contending that the refusal of the adjournment and the failure to refer the dispute to mediation violated Articles 50(1) and 159 of the Constitution, and that procedure had been allowed to defeat substantive justice. The Court, per Radido Stephen, J, restated its first appellate duty to re-evaluate the evidence, and traced the procedural history: the Respondent testified and closed his case on 1 February 2022; the Appellants obtained one adjournment; hearings were twice adjourned for court-related reasons; and on 14 March 2023 a further adjournment was refused. The Court held that the right to a fair hearing is not free-floating but is evaluated within the parameters of procedural law, which required the Appellants to file witness statements with their pleadings; they failed to do so despite the court's indulgence. On ADR, the parties had negotiated and entered a partial consent adopted by the trial court. The appeal was found to have no merit and was dismissed with costs.

Key legal issues

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01

Whether refusal of adjournment violated the Appellants' right to a fair hearing

Holding

No violation; the Appellants failed to file witness statements as required by the Rules and squandered the court's indulgence and a last adjournment

Reasoning

Procedural law requires parties to file and serve witness statements with their primary pleadings so that each side knows the case it faces. The trial court indulged the Appellants yet they still failed to comply. Article 159(2)(d) does not excuse a party's own default; the right to a fair hearing operates within the parameters of procedural law ensuring equality of arms.

p. 4
02

Whether the trial Magistrate erred in failing to refer the dispute to mediation/ADR

Holding

No error; the parties were given the opportunity, agreed a partial consent which was adopted by the court

Reasoning

The record shows the parties negotiated, a partial consent was entered and adopted on 1 February 2022 over the unresolved part of the dispute. The Appellants cannot therefore accuse the Magistrate of failing to consider alternative dispute resolution.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the conclusions reached by the trial court should stand
  • The right to a fair hearing is not free-floating; it is evaluated within the parameters set by procedural law, including the duty to file witness statements with primary pleadings
  • A party who fails to comply with court rules and indulgences granted cannot claim denial of the right to be heard

Court orders

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  1. 1.The Appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1), Article 159(1)(a), 159(2)(d), 159(c), 159(d)
  • Civil Procedure ActSection 59B
  • Civil Procedure RulesOrder 46 Rule 26
  • Employment and Labour Relations Court (Procedure) Rules, 2016Witness statements to be filed with primary pleadings

Cases cited (1)

  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    (2013) eKLR
On appeal from
Senior Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court under the Employment and Labour Relations Court (Procedure) Rules, 2016, following leave granted on 8 June 2023

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, "Board of Management, Nyanchwa Preparatory School & another v Denis (Appeal E038 of 2023) [2023] KEELRC 3034 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3034/eng@2023-11-29

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