[2016] KEELRC 885 (KLR)
The court held that while the rules allow for disposal of cases by documentation, not all matters are suitable for such procedure. Given the factual disputes, including allegations of forgery and the need to test the veracity of testimony, the case requires viva voce evidence. The right to a fair hearing under...
Source-derived case information.
- Citation
- [2016] KEELRC 885 (KLR)
- Parties
- Applicant: Kenya County Government Workers Union; Respondent: Nairobi City Water & Sewerage Co Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 876 of 2015
- Procedural Posture
- Employment Cause / Ruling on Mode of Hearing
- Outcome
- application dismissed with costs to the respondent
- Judges
- AN Makau
- Legal Topics
- Termination for Misconduct, Right to Fair Hearing, Admissibility of Evidence, Procedure for Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya County Government Workers Union
Applicant
Nairobi City Water & Sewerage Co Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Mode of Hearing
Legal Issues
- 1 Whether the cause should be disposed of by way of written submissions or require viva voce evidence.
- 2 Whether the right to fair hearing under Article 50 of the Constitution is preserved by written submissions.
- 3 Whether the factual disputes, including allegations of forgery, necessitate oral testimony.
Ratio Decidendi
The court held that while the rules allow for disposal of cases by documentation, not all matters are suitable for such procedure. Given the factual disputes, including allegations of forgery and the need to test the veracity of testimony, the case requires viva voce evidence. The right to a fair hearing under Article 50 of the Constitution is not abridged by the court's rules, but the circumstances of this case necessitate a full trial to ensure justice is served. Therefore, the application to dispose of the matter by written submissions is dismissed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to dispose of the cause by written submissions is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO. 876 OF 2015
KENYA COUNTY GOVERNMENT WORKERS UNION……..CLAIMANT
VERSUS
NAIROBI CITY WATER & SEWARAGE CO LTD.......................RESPONDENT
RULING
The matter from all accounts is one that involves termination for misconduct. Mr Katuli submits it can be disposed of by way of written submissions. He states it is quite straight forward. In his submissions he states the cause can be determined from the documents filled by either side. He adds that seventy percent of the document relied on by the Respondents are forgeries and urges the Court to scrutinise the documents and determine the cause.
Mr. Okuta for the Respondent is of a contrary view and submits the demeanour of the Claimant and Respondent’s witnesses are critical in determining the cause. He states viva voce evidence would need to be called as the case relates to the dismissal of the employee for dishonesty and therefore evidence would need to be led. He submits that Article 50 of the Constitution guarantees a right to fair hearing and that disposing the cause by written submissions will not guarantee a right to fair trial.
In his reply, Mr. Katuli submits that the matter was subject of conciliation and the conciliation was one that the Respondent participated in.
It is amply clear to the Court that there is a dispute between parties. The Industrial Court (Procedure) Rules 2010 provide under Rule 23 for the disposal of a cause by way of documentation. In my view, the provisions of Article 50 of the Constitution are not abridged by the Rules of this court. The Rules are designed to facilitate the expeditious disposal of cases in terms of Article 159 of the Constitution and do not feter the right to fair trial. That said however, does not mean each case is fit for disposal by documents in terms of Rule 23 of our Rules. Indeed some cases require viva voce evidence to be adduced. Fairly simple matters need not encumber the Court with lengthy hearings.
The case before Court relates to the dismissal of the grievant in February 2009. There are factual issues that will require scrutiny in trial and the veracity of testimony tested. Indeed, if the Respondent has forged documents, only a trial can determine this.
The upshot of the foregoing is that the application is devoid of merit and is dismissed with costs to the Respondent.
It is so ordered.
Dated and signed at Nairobi this 7th day of June 2016
NZIOKI WA MAKAU
JUDGE