https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2256

Karanja v Danka Africa (K) Ltd (Cause E049 of 2025) [2026] KEELRC 2256 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2256 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E049 of 2025 J Rika, J July 30, 2026 Between James Ndumbi Karanja Claimant and Danka Africa [K] Limited Respondent Ruling 1.The Claim was scheduled for hearing with the agreement of the Parties, on 12th March 2026. Hearing was scheduled for 28th April 2026. 2.At 9.00 a.m. on 28th April 2026, Counsel for both Parties, confirmed they were ready to proceed. 3.Each had a witness. 4.The Court, with the concurrence of the Counsel, scheduled the matter for hearing at 11.30 a.m. 5.The Claimant gave evidence and closed his case as scheduled. 6.Counsel Ms. Watiri for the Respondent, sought adjournment, explaining that Counsel seized of the matter for the Respondent, Ms. Githi was held up at the High Court with other matters. 7.The Court closed the Claimant’s case, while adjourning hearing of the Respondent’s case to 23rd September 2026. 8.The Respondent filed an application dated 28th April 2026, asking the Court to reopen the Claimant’s case, have him recalled and cross-examined, by Counsel for the Respondent. 9.Ms. Githi swore two affidavits in support of the application. She explains that she was engaged in other Courts, and had requested that the Court proceeds at 12.00 p.m., but the Court instead proceeded at 11.30 a.m. She states that Ms.Watiri who was present in Court, was not seized of the brief and could not cross-examine the Claimant. She states that she was engaged in a highly contentious matter at Thika High Court, and that it is not unusual for Counsel to have more matters than was intended, on the same date. She submits that the Respondent’s right of fair hearing would be impaired, if the Claimant is not recalled. 10.The Claimant filed a replying affidavit on 13th May 2026. He states that the hearing date was taken by the Parties consensually. He presented himself before the Court at 9.00 a.m. ready to prosecute his Claim. The Respondent was represented by Counsel Ms. Watiri. 11.The Respondent confirmed readiness to proceed, and asked for time allotment at 12.00 o’clock. The Court allowed rescheduling to 11.30 a.m. The Claimant was heard at 11.30 a.m. while the Respondent indicated it was not yet ready to proceed. The Claimant states that the Respondent was given the opportunity to cross-examine him, but its Counsel Ms. Watiri insisted that only Ms. Githi could cross-examine. 12.The Claimant submits therefore that the Respondent, cannot complain that it was denied fair hearing. 13.It was agreed by the Parties at the last mention on 11th May 2026, that the application is considered and determined on the strength of their affidavits and submissions on record. The Court Finds: - 14.The Respondent was granted adequate opportunity to participate in the hearing on 28th April 2026. 15.Although witnesses for both Parties were ready, and scheduled to be heard on this date, the Court accommodated the Respondent, by rescheduling hearing of its evidence, to 23rd September 2026. 16.The hearing date, it is to be noted, was scheduled by consent, by Counsel for the Parties. 17.There is no persuasive explanation given by the Counsel for the Respondent, why she opted to attend to proceedings elsewhere, while keeping this Court, and the Claimant waiting for over 2 hours. 18.Having been accommodated up to 11.30 a.m. would it not have been prudent for Counsel, to seek adjournment in these other proceedings, and attend to her brief before this Court? 19.This Court has explained to Parties appearing before it that ordinarily, it hears matters from 9.00 a.m. to around 1.00 p.m. The afternoons are occupied with preparation of Judgments and Rulings, as well as preparation of matters scheduled for the following day. To suggest that a hearing scheduled for 9.00 a.m. is deferred to 12.00 o’clock, severely impairs the Court’s workflow. 20.The Claimant was terse in his evidence. He did not say much. He adopted his witness statement and documents, and offered himself for cross-examination. 21.There was no good reason why Counsel appearing for the Respondent on the material day, could not cross-examine the Claimant, in the absence for whatever reason, of the Lead Counsel. She had over 2 hours from 9.00 a.m. to familiarize with the witness statement of the Claimant. She recorded the Claimant’s evidence. She was presumed to have full authority in the matter, having been present throughout. 22.In fact, Ms. Watiri represented the Respondent in Court on 10th February 2026, when she informed the Court that the Claimant had not served the Respondent with a document marked ‘JN3.’ She sought leave for the Respondent to file additional documents. 23.She was in Court on 12th March 2026, and scheduled the date for hearing in concurrence with the Counsel for the Claimant. She informed the Court that the Claimant amended his list of documents, instead of filing the document as earlier directed. Ms. Watiri, as shown by the record, has interacted with the Claim, just as much as Ms. Githi. 24.She was not a stranger to the brief, and confirmed at 9.00 a.m. on 28th April 2026, that ‘’ we have one witness, we are ready.’’ She was not given impromptu instructions to hold brief, on the hearing date. She had instructions, as shown in her past appearances on behalf of the Respondent. 25.In the absence of Ms. Githi, there was nothing holding back Ms. Watiri from cross-examination of the Claimant, and even in presentation of the Respondent’s case. 26.The Court does not think it would be in keeping with the principle of fair hearing, to recall the Claimant and reopen his case, while he prosecuted his case on the date and time set by the Court with the concurrence of Counsel, and offered himself for cross-examination, but was not cross-examined. 27.The Court must retain the ability to manage its proceedings, and not bend backwards to accommodate Parties who fail to properly align their calendars, with that of the Court. The principle of fair hearing cuts both ways, and must not be abused to limit the Court, in its mandate to manage its proceedings. 28.In a worst case scenario, the Court could have dismissed the Respondent’s case on 28th April 2026, closed the proceedings in their entirety, after the Respondent failed to present its witness as scheduled. The Court instead, allowed the Respondent to adjourn its case. How was the Respondent’s right to fair hearing compromised? The Respondent has not been denied its right to present its case. It was offered the opportunity to cross-examine. There was no reason to adjourn the Claimant’s case. He was available, ready to prosecute his case, and to be cross-examined. He prosecuted his case to the end. He offered himself for cross-examination. It would be in violation of his right of fair hearing and vexatious to him, by reopening his case, and by bringing him back to Court for cross-examination at the convenience of the Respondent.It is ordered: -a.The application by the Respondent dated 28th April 2026 is declined.b.Hearing of the Respondent’s case on 23rd September 2026, as scheduled. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 30TH DAY OF JULY 2026.JAMES RIKAJUDGE