Moses Njuki Ngethe v Ministry of Interior and Co-ordination of National Government, Attorney General & Public Service Commission [2021] KEELRC 627 (KLR)

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