Lichana v National Police Sevice Commission & another (Cause E017 of 2024) [2025] KEELRC 2551 (KLR)
The bottom line
#Kenya's Employment Court will re-open a closed hearing when a party explains why key witnesses were missing, but it will make the requesting party pay costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has demonstrated sufficient reasons for the court to re-open the hearing of the suit
- 2.Whether the applicant is entitled to the reliefs sought
Key legal issues
#Whether sufficient reason exists under Rule 66(2) of the ELRC (Procedure) Rules, 2024 to re-open a closed hearing
Yes. The delay was not inordinate, the absence of the police-officer witnesses was adequately explained, the claimant could cross-examine and adduce further evidence, and substantive justice favours re-opening, subject to costs to the claimant.
The court drew on the Supreme Court's factors for admitting further evidence on appeal, applying them by analogy. It found no inordinate delay (application filed 5th March after the 11th February closure, before judgment), an acceptable explanation (witnesses on official duty, including deployment to Haiti), and no irreparable prejudice since documents were already on file and the claimant may cross-examine and call further evidence. It noted counsel's mistake should not be visited on the party, while stressing party vigilance, and that an award against a public body is ultimately borne by the taxpayer.
Whether an error by counsel should be visited upon the party
No, but a party must remain vigilant; here counsel's failure to procure witnesses and explain the position contributed to the closure of the respondent's case.
The court accepted the principle from the authorities cited by the applicant that a litigant should not suffer for counsel's error, but tempered it: the party has a duty to follow each step of the litigation. Balancing the competing interests, and because the court's objective is substantive justice over procedural technicality, the error did not justify denying the re-opening, though the respondent bore costs.
Legal principles established
#- Under Rule 66(2), the court may re-open a hearing for sufficient reason, considering factors such as delay and its explanation, reasons for the evidence not being availed, prejudice to the other party, and costs.
- Documents may only be produced as exhibits through a competent witness unless by consent.
Court orders
#- 1.The notice of motion by the 1st respondent dated 5th March, 2025 be and is hereby allowed as prayed
- 2.Witness statements for the two proposed witnesses be filed and served within 7 days of this ruling
- 3.Leave granted to the claimant to file further witness statement(s) and or further documents and serve the same within 7 days of this ruling
- 4.Leave granted for the claimant, if he so pleases, to testify further when the matter comes up for hearing
- 5.Costs of the application to the claimant in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(2)(a) and 23(1) of the Constitution; Employment and Labour Relations Court Act; Employment and Labour Relations Court (Procedure) Rules, 2024 (Rule 66(2))
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court shall not re-open a hearing unless, for suficient reason, it considers it fit to do so.
The notice of motion by the 1st respondent dated 5th March, 2025 be and is hereby allowed as prayed.
Costs of the application to the claimant in any event.
it is imperative that the court be more obsessed with substantive justice as opposed to mechanical or procedural technicalities but with the necessary moderation to avoid delay in conclusion of cases and abuse of court process.
Issues in the judgment
#The judgment records that a replying affidavit was filed by the claimant but it is not on the court file.
Case number and neutral citation are not stated anywhere in the judgment.
Spellings of witness names vary within the judgment (e.g. Maurin Odhiambo / Maurin Adhiambo; James Musee Nduna / James Nduna Musee; Januaris Mbithi / Januarias Mbithi).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lichana v National Police Sevice Commission & another (Cause E017 of 2024) [2025] KEELRC 2551 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2551/eng@2025-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.