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ELRCDismissedNot stated in judgment· [2023] KEELRC 3039 (KLR)

Board of Management, Nyanchwa Preparatory School & another v Arogo (Appeal E040 of 2023) [2023] KEELRC 3039 (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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A Kenyan employment court confirmed that missing court deadlines to file witness statements forfeits your right to complain about not being heard.

What this practically means

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Executive summary

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This was a first 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 (a school's Board of Management and the Seventh Day Adventist Church (EA) Ltd, South Kenya Conference) an adjournment of the defence hearing in a salary-arrears dispute with the Respondent, a former employee. Leave to appeal was granted on 8 June 2023 subject to deposit of the decretal sum, and the appeal was lodged on 24 July 2023. The Appellants raised seven grounds, principally that the Magistrate sacrificed justice on the altar of procedural technicality by shutting out their evidence for failure to file witness statements, contrary to Articles 50(1) and 159(2)(d) of the Constitution, and failed to consider mediation and alternative dispute resolution. The Court, applying the first appellate duty in Abok James Odera, re-examined the record and found that the Appellants had been granted a prior adjournment and court indulgence to file and serve witness statements as required by the ELRC (Procedure) Rules, 2016, yet failed to comply. It held the right to a fair hearing is not free-floating but is evaluated within procedural parameters ensuring equality of arms, and that the ADR request had in fact been accommodated through a partial consent adopted by the trial court. The appeal was dismissed with costs. Judgment delivered virtually from Kisumu on 29 November 2023 by Radido Stephen, Judge.

Key legal issues

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01

Denial of right to fair hearing by refusal of adjournment

Holding

The Appellants were not denied a fair hearing; they failed to file witness statements despite court indulgence and a last adjournment

Reasoning

The procedural rules require parties to file and serve witness statements with their primary pleadings so the other side knows the case in good time. The Appellants were granted an adjournment and court indulgence to file statements but failed to comply. Procedural law provides parameters within which the right to a fair hearing is evaluated, ensuring equality of arms; a party cannot claim violation when it ignored those parameters and court directions.

p. 4
02

Failure to consider alternative dispute resolution/mediation

Holding

The trial court did consider ADR; the parties were given the opportunity and reached a partial consent adopted by the court

Reasoning

The record showed the parties were allowed time to negotiate on 16 February 2021 and subsequently entered a partial consent on the unresolved part of the dispute, which was adopted by the court. The Appellants therefore could not fault the Magistrate for declining to make a finding on ADR, as the opportunity had been given and partially utilised.

p. 4

Legal principles established

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  • The right to a fair hearing is not free-floating; it must be evaluated within procedural parameters requiring parties to file witness statements with their pleadings
  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions should stand

Court orders

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  1. 1.The Appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d); Article 159(a); Article 159(c); Article 159(d); Article 50(1)
  • Civil Procedure ActSection 59(B)
  • Civil Procedure RulesOrder 46 rule 26
  • Employment and Labour Relations Court (Procedure) Rules, 2016Not specified (requirement to file witness statements with 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 from a subordinate court under the Employment and Labour Relations Court (Procedure) Rules, 2016; leave to appeal granted by this Court 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 Arogo (Appeal E040 of 2023) [2023] KEELRC 3039 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3039/eng@2023-11-29

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