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ELRCDismissedCause No 11 of 2020· [2025] KEELRC 735 (KLR)

Saisi v Francis Mulama Kadima t/a Kadima & Company Advocate (Cause 11 of 2020) [2025] KEELRC 735 (KLR)

Employment and Labour Relations Court of Kenya
7 March 2025
6,785 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to halt judgment delivery, holding that a judgment is not delivered until signed and that correcting a typo is no basis for recusal.

What this practically means

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Executive summary

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This Ruling by Agnes Kitiku Nzei, J of the Employment and Labour Relations Court (Nairobi, file transferred from Mombasa) determines the Respondent's Notice of Motion dated 8th December 2024, brought on the eve of judgment in a long-running employment claim by the Claimant, a former Legal Assistant of the Respondent advocate. The Respondent sought a stay of proceedings and/or delivery of judgment, the recusal of the trial judge, a declaration of mistrial and transfer of the case to another judge for fresh hearing. The court first condemned an irregularity whereby the application, filed after noon on 8th December 2024 under a certificate of urgency without being placed before a judge for directions as required by Rule 44 of the ELRC (Procedure) Rules 2024, was nonetheless listed for hearing before the judge and posted on a cause list, and directed the Registrar to investigate and take administrative action. On the merits, the court held that a judgment is not delivered until the court pronounces on the parties' rights and signs the judgment, so a typographical omission noted mid-delivery on 6th December 2024, prompting deferral, was a curable irregularity under Rules 74 and 75. Applying the objective test of reasonableness from Gachuri v Attorney General, the court found no real possibility of bias, noting the respondent had never questioned the judge's impartiality during the trial. The mistrial claim failed because the trial was fully and procedurally concluded. The application was dismissed with costs and the court proceeded to deliver its judgment in the main suit immediately. Right of appeal was given.

Key legal issues

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01

When a judgment is considered delivered

Holding

A judgment is delivered only when the court pronounces its final decision on the parties' rights and signs it; before that, the court may correct typographical omissions while delivering it

Reasoning

Relying on Black's Law Dictionary (10th Edition) and Order 21 Rule 2(3) of the Civil Procedure Rules, the court held that a judgment must contain a concise statement of the case, points for determination, decision and reasons, and is not delivered until pronouncement and signature. The omission noted mid-delivery on 6th December 2024 therefore did not render the judgment delivered, nor did the deferral invalidate the process.

p. 11
02

Recusal on grounds of apprehended bias

Holding

The application for recusal fails; the respondent did not establish a real possibility of bias under the objective test of reasonableness

Reasoning

Adopting the test in Gachuri v Attorney General and Porter v Magill, the court found that the respondent raised no complaint about the Court's impartiality throughout the four-year trial, and that a typographical omission in the typed judgment, corrected by deferring delivery, is a contemplated and curable irregularity (Rules 74 and 75 of the ELRC Procedure Rules 2024) and not a reasonable basis for recusal.

p. 12
03

Whether a mistrial occurred

Holding

No mistrial; deferral of a judgment date is within the court's powers under Rule 80 of the ELRC (Procedure) Rules 2024

Reasoning

Applying the Black's Law Dictionary definition of a mistrial as a trial ended without determination of the merits because of procedural error or serious misconduct, the court found the trial was fully and procedurally conducted, the record intact, and the respondent's allegation arising only from the deferral of judgment delivery to be far-fetched.

p. 13
04

Irregular listing of the urgent application

Holding

The application filed after noon on 8th December 2024 should not have been listed for hearing before a judge gave directions under Rule 44; the court condemned the irregularity and directed administrative action

Reasoning

The court found that the application was electronically filed at 16.48 hours, well past noon, yet appeared on a cause list from the Mombasa Registry fixed for hearing at 9.00 a.m. on 9th December 2024 before any judge had given directions, apparently to circumvent delivery of judgment. The court directed the Registrar to investigate and take administrative action against the perpetrator.

p. 8

Legal principles established

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  • A judgment is not delivered until the court pronounces its final decision on the rights and obligations of the parties and signs the judgment
  • Recusal is tested objectively on reasonableness and the applicant bears a high onus
  • A court may extend or defer delivery of its judgment by a further order under Rule 80 of the ELRC (Procedure) Rules 2024

Court orders

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  1. 1.The Respondent's Notice of Motion dated 8th December, 2024 is dismissed with costs
  2. 2.The prayer for recusal of the Court is declined
  3. 3.The prayer for declaration of a mistrial is declined
  4. 4.The Court's Judgment in the main suit is delivered immediately following the Ruling
  5. 5.The Court's Registrar is directed to find out who was responsible for the irregular listing of the urgent application and to take appropriate administrative action against such person
  6. 6.Right of appeal is given

Authorities

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Legislation

  • Constitution of Kenya 2010Article 41(1)
  • Constitution of Kenya 2010Article 50(1)
  • Constitution of Kenya 2010Article 159
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 44
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 74
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 75
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 80
  • Civil Procedure RulesOrder 21 (Rule 2(3))
  • Civil Procedure Rules 2010Order 45
  • Civil Procedure ActSections 3, 3A, 6 and 63(e)
  • Advocates ActSection 37
  • Employment Actnot specified
  • Law Society Actnot specified
  • Evidence Actnot specified

Cases cited (2)

  • Gachuri – vs – Attorney General & Another, Kenya Judges Welfare Association & Another (Interested Parties
    Constitutional Petition No. E0304 of 2023 [2024] KEHC 1632 (KLR)
  • Porter – vs – Magil
    [2002] 1 ALL ER 465
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; application expressed to be brought under Order 21 of the Civil Procedure Rules, Sections 3, 3A, 6 and 63(e) of the Civil Procedure Act and Articles 50 and 159 of the Constitution of Kenya 2010

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, "Saisi v Francis Mulama Kadima t/a Kadima & Company Advocate (Cause 11 of 2020) [2025] KEELRC 735 (KLR)", Case Analysis (2025). Cause No 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/735/eng@2025-03-07

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