Gacheru v Amissah & another (Cause 524 of 2012) [2012] KEIC 26 (KLR)
The bottom line
#Kenya's Industrial Court ruled that judges cannot make final orders affecting a party without hearing them first, setting aside an order demanding Kshs. 1.2 million as security.
What this practically means
#Executive summary
#Key legal issues
#Competence to review the ex parte security order
The court had power to review the order of its predecessor/sitting judge and varied it by setting it aside
The court examined the status of the judge who made the order, noting the predecessor tribunal was subordinate to the High Court and the proceedings continued under section 33 of the Industrial Court Act. It then applied the principles for interfering with judicial discretion, finding the ex parte deposit order was draconian, made without hearing the Respondents, and based on an arbitrary liquidated sum for an unliquidated employment claim.
Natural justice - audi alteram partem
Making final orders ex parte violated the rule that no one is to be condemned unheard
The court held the second cardinal rule of natural justice was engaged; the court had made what were effectively final orders at the ex parte stage, rendering the proposed inter partes hearing superfluous and unfair to the party not heard.
Legal principles established
#- A court should not condemn a party unheard; final orders made ex parte without a hearing breach natural justice
- Interference with judicial discretion is warranted only where the judge misdirected himself or was clearly wrong resulting in injustice
- The Industrial Court established under Article 162(2)(a) is a superior court of record with the status of the High Court, unlike its predecessor tribunal
Court orders
#- 1.The Order of 30th April 2012 by Honourable S. Madzayo be and is hereby set aside
- 2.The Respondent's Counsel to execute a suitable undertaking as to damages within 14 days
- 3.Costs in the Cause
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; Industrial Court Act No. 20 of 2011, Section 4
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gacheru v Amissah & another (Cause 524 of 2012) [2012] KEIC 26 (KLR)", Case Analysis (2012). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/26/eng@2012-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.