Nganga v Africare Ltd (Cause E037 of 2021) [2025] KEELRC 1600 (KLR)
The bottom line
#A Kenyan employment court refused an employer's bid to re-open its case with LinkedIn evidence it could have found earlier, and ordered it to pay costs.
What this practically means
#Executive summary
#Key legal issues
#Whether new evidence discovered during or after the hearing justifies re-opening a case
No, where the party knew of the evidence at the commencement of the hearing and failed to act with due diligence
The Respondent's advocate had visited the Claimant's LinkedIn page in 2021 and again on 21 January 2025 before the hearing commenced, so the evidence was known at the start of the hearing. The Respondent waited until the close of hearing with judgment reserved to move the Court. It had also cross-examined the Claimant on the very subject. Its assertion of late discovery was an afterthought and an abuse of process.
Whether post-termination evidence can affect the fairness of a termination
No, the Court assesses fairness on the employer's genuine belief at the material time of termination
Section 43 of the Employment Act directs the Court to examine the reasons the employer genuinely believed to exist at the time of termination. Facts discovered by the employer during the hearing, years after the 2020 termination, could not legitimately influence the assessment of whether the termination was fair and valid.
Whether the Motion constituted an abuse of court process
Yes; it frustrated the expeditious and proportionate conduct of litigation, contrary to section 3 of the ELRC Act
The Respondent had earlier failed to comply with directions on filing a substitute witness statement and caused an adjournment for inappropriate dress. The Motion, filed after hearing concluded and judgment reserved, compounded a pattern of frustrating the swift conduct of litigation and defeated the principal objective of the Court.
Legal principles established
#- In unfair termination disputes, the fairness of a termination is assessed on the reasons the employer genuinely believed to exist at the material time
- A party who fails to exercise due diligence in obtaining evidence before close of hearing cannot re-open its case after judgment is reserved
Court orders
#- 1.The Court declines to allow the Motion dated 5 May 2025, and it is dismissed
- 2.The Respondent to pay costs of the Motion to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 3
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga v Africare Ltd (Cause E037 of 2021) [2025] KEELRC 1600 (KLR)", Case Analysis (2025). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1600/eng@2025-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.