[2021] KEELRC 627 (KLR)
The appellate court found that the trial magistrate failed to set out or consider the oral testimony and evidence presented by both parties. The judgment lacked any credible consideration or analysis of the evidence, resulting in a decision unsupported by factual analysis. This amounted to a mistrial, as the...
Source-derived case information.
- Citation
- [2021] KEELRC 627 (KLR)
- Parties
- Appellant: Moses Njuki Ngethe; Respondent: Ministry of Interior and Co-ordination of National Government; Respondent: The Hon. The Attorney General; Respondent: Public Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E076 of 2020
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Lower court proceedings declared a mistrial. Suit remitted for rehearing before a different magistrate.
- Judges
- MN Nduma
- Legal Topics
- Unfair Dismissal, Disciplinary Procedure, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Njuki Ngethe
Appellant
Ministry of Interior and Co-ordination of National Government
Respondent
The Hon. The Attorney General
Respondent
Public Service Commission
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate failed to consider and analyze the evidence presented by both parties.
- 2 Whether the appellant's right to a fair hearing under Article 50 of the Constitution was violated.
- 3 Whether the proceedings in the lower court amounted to a mistrial due to lack of factual analysis.
Ratio Decidendi
The appellate court found that the trial magistrate failed to set out or consider the oral testimony and evidence presented by both parties. The judgment lacked any credible consideration or analysis of the evidence, resulting in a decision unsupported by factual analysis. This amounted to a mistrial, as the appellant was denied a fair opportunity to challenge the respondent's case and the court failed in its duty to evaluate the evidence. Consequently, the proceedings in the lower court were declared a mistrial, and the matter was remitted for rehearing before a different magistrate.
Court Disposition
Appeal allowed. Lower court proceedings declared a mistrial. Suit remitted for rehearing before a different magistrate.
Orders
- The proceedings in the lower court are declared a mistrial.
- The suit is remitted for rehearing de novo before a magistrate other than Hon. D.M. Kivuti and Hon. Orenge.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CIVIL APPEAL NO. E076 OF 2020
MOSES NJUKI NGETHE.................................................APPELLANT
VERSUS
MINISTRY OF INTERIOR AND CO-ORDINATION OFNATIONAL
GOVERNMENT..........................................................1ST RESPONDENT
THE HON. THE ATTORNEY GENERAL............ 2ND RESPONDENT
PUBLIC SERVICE COMMISSION........................3RD RESPONDENT
JUDGMENT
1. The appeal is made against the judgment of Hon. D.M. Kivuti, Senior Resident Magistrate delivered on 9/10/2020. The grounds of Appeal are as follows:-
1. THAT the learned Magistrate misdirected himself in law infailing to consider the evidence in Chief of both the Appellant and Respondents’ witness in his judgment.
2. THAT the learned magistrate erred in law and fact in failure tocapture crucial evidence of the parties in his judgment and thus denies the appellant an opportunity to challenge the evidence tendered by Respondents’ witness and raise plausible grounds of Appeal before this Honourable Court.
3. THAT the learned Magistrate erred in law and fact in failure toprotect the rights of the appellant herein provided under Article 50 of the Constitution of Kenya, 2010 by making a finding that the appellant underwent disciplinary hearing.
4. THATthe learned Magistrate erred in law and fact in failure toreproduce the evidence of the parties taken before the trial Magistrate Hon. I. Orenge, Senior Resident Magistrate and thus denies the appellant an opportunity to challenge the evidence tendered by Respondent’s witness and to appreciate the basis of dismissal of his claim.
5. THAT the learned Magistrate misdirected himself in failing tofind that the appellant was wrongly dismissed as he was incapacitated to attend work place due to mental illness which issue was supported by medical documents submitted to the Court by the appellant.
6. THAT the learned Magistrate erred in law and fact in failing toconsider appellant’s pleadings and plausible evidence tendered by the appellant before the trial Magistrate and as such occasioned miscarriage of justice to the appellant.
2. The parties filed written submissions. This being a first appeal, this Court is guided by the decision in Selle –vs- Associated Motor Boat Company Limited [1968] E.A 123where Sir Clement De Lestang stated:-
“This Court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it has neither seen nor heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances on probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally,”
3. At the hearing according to the submissions by both parties, the suitproceeded by way of oral evidence where the claimant testified in person and relied on his witness statement dated 15th March, 2019 and filed on 21st March, 2019. The respondent on the other hand called one witness Mr. Harold Avisa from the Public Service Commission who testified on his statement dated 4th July, 2019 and filed on 18th July, 2019.
4. The learned trial magistrate Hon. D.M. Kivuti in his judgment dated9/10/2020 did not set out in any detail or summary the testimony by the claimant and that by Mr. Herold Avisa. Indeed, the trial magistrate does not allude to any oral testimony by the parties at all.
5. The judgment by the Court lacks any and or any credible considerationof the evidence by the parties and the decision arrived at by the learned magistrate lacks any logical support from factual analysis of facts before him.
6. Accordingly, this Court finds that the proceedings in the lower Courtamounted to a mistrial and the Court hereby declare so and remit the suit for re-hearing denovobefore another magistrate other than Hon. D.M. Kivuti and Hon. Orenge.
7. Costs in the cause.
8. It is so ordered.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 28TH DAY OF OCTOBER, 2021
MATHEWS N. NDUMA
JUDGE
Appearances
Moses Njuki – appellant in person
Ekale – Court lerk