Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in the judgment· [2025] KEELRC 2551 (KLR)

Lichana v National Police Sevice Commission & another (Cause E017 of 2024) [2025] KEELRC 2551 (KLR)

Employment and Labour Relations Court
22 September 2025
DNDavid Nderitu
3,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
In this interlocutory ruling of the Employment and Labour Relations Court at Kakamega, Judge David Nderitu determined a notice of motion dated 5th March 2025 by the 1st respondent seeking to arrest and stay proceedings, set aside the record of proceedings of 11th February 2025 (including the order closing the 1st respondent's case), and be allowed to call two witnesses - inspectors said to have presided over and assisted in the claimant's March 2022 orderly room proceedings who were unavailable at the hearing due to official duties, including deployment to a multinational force in Haiti. The claimant opposed, arguing bad faith, abuse of process, absence of explanation at the pre-trial stage, and that experienced counsel had consciously elected not to call evidence. The court framed one main issue: whether sufficient reason existed under Rule 66(2) of the ELRC (Procedure) Rules, 2024 to re-open the hearing. Borrowing factors from the Supreme Court's Mahamud v Mohamad decision on further evidence on appeal, the court found no inordinate delay, an adequately explained absence of witnesses, no serious prejudice to the claimant (who retains cross-examination and may adduce further evidence), and noted that a party should not suffer for counsel's error while stressing party vigilance. Weighing substantive justice against technicality, and observing that any award against the public-body respondent would ultimately fall on the taxpayer, the court allowed the application, with directions for filing witness statements and a right for the claimant to adduce further evidence, and awarded costs of the application to the claimant in any event. The underlying claim for unlawful termination remains pending.

Key legal issues

#
01

Whether sufficient reason exists under Rule 66(2) of the ELRC (Procedure) Rules, 2024 to re-open a closed hearing

Holding

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.

Reasoning

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.

p. 6
02

Whether an error by counsel should be visited upon the party

Holding

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.

Reasoning

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.

p. 7

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. 1.The notice of motion by the 1st respondent dated 5th March, 2025 be and is hereby allowed as prayed
  2. 2.Witness statements for the two proposed witnesses be filed and served within 7 days of this ruling
  3. 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. 4.Leave granted for the claimant, if he so pleases, to testify further when the matter comes up for hearing
  5. 5.Costs of the application to the claimant in any event
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))

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.