Case ID:184387

Moses Njuki Ngethe v Ministry of Interior and Co-ordination of National Government & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Appeal E076 of 2020

Parties:

Moses Njuki Ngethe v Ministry of Interior and Co-ordination of National Government, Attorney General & Public Service Commission

Date Delivered:

28 Oct 2021

Case Class:

Civil

Court:

Employment and Labour Relations Court at Nairobi

Case Action:

Judgment

Judge(s):

Mathews Nderi Nduma

Citation:

Moses Njuki Ngethe v Ministry of Interior and Co-ordination of National Government & 2 others [2021] eKLR

Court Division:

Employment and Labour Relations

County:

Nairobi

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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 OF

NATIONAL

GOVERNMENT..........................................................1

ST

RESPONDENT

THE HON. THE ATTORNEY GENERAL............ 2

ND

RESPONDENT

PUBLIC SERVICE COMMISSION........................3

RD

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 in

failing 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 to

capture 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 to

protect 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.

THAT

the learned Magistrate erred in law and fact in failure to

reproduce 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 to

find 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 to

consider 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 123

wher

e 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 suit

proceeded by way of oral evidence where the claimant testified in person and relied on his witness statement dated 15

th

March, 2019 and filed on 21

st

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 4

th

July, 2019 and filed on 18

th

July, 2019.

4. The learned trial magistrate Hon. D.M. Kivuti in his judgment dated

9/10/2020 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 consideration

of 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 Court

amounted to a mistrial and the Court hereby declare so and remit the suit for re-hearing

denovo

before 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 28

TH

DAY OF OCTOBER, 2021

MATHEWS N. NDUMA

JUDGE

Appearances

Moses Njuki – appellant in person

Ekale – Court lerk