Harrison Otiende & 5 others v Badari Sacco Limited & 3 others [2019] KECA 808 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an appeal against the striking out of a union suit filed without proper authority, confirming courts will not rescue procedural defects raised too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by hearing the preliminary objection on a date when the matter was scheduled for mention
- 2.Whether want of authority on the appellants' part called for the striking out of the entire suit as held by the trial Judge
Key legal issues
#Whether substantive orders may issue on a mention date
The complaint that the preliminary objection was heard on a mention date fails where no party objected and all parties fully argued the objection; a party who participated without protest cannot later complain.
The Court acknowledged that courts have frowned upon giving substantive orders on mention dates because parties may be unprepared or absent and prejudiced. But where, as here, all parties were present, none raised any objection, and counsel fully submitted on the preliminary objection, no prejudice arises and the ground does not lie. The appellants' counsel had in fact proceeded to argue the objection on that date.
Whether a defective consent/authority to institute a representative claim warrants striking out the entire suit
The trial Judge did not err in upholding the preliminary objection and striking out the suit; the appellants conceded the defect against Rule 9(3) and did not demonstrate that a request to dispense with the letter of authority under the proviso was sought and wrongly denied, or that the discretion was otherwise wrongly exercised.
Rule 9 of the ELRC (Procedure) Rules requires a letter of authority signed by all parties for a representative suit, subject to a proviso permitting the court to dispense with that requirement. The appellants conceded the defect, and it was not shown that dispensation was sought and denied or that the trial court's discretion was misdirected. Applying Mbogo v Shah, the Court of Appeal will not interfere with the exercise of discretion absent misdirection, a clearly wrong decision, or injustice.
Legal principles established
#- There is nothing wrong with a court hearing parties and issuing orders on a mention date where all parties are present, none objects to the hearing of the issue, and all are heard on it.
- An appellate court may interfere with a trial court's exercise of discretion only where it is shown to have been wrongly exercised, resulting in a wrong decision or injustice.
- On a first appeal, the appellate court's primary role is to re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial judge's conclusions should stand, giving reasons either way.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Employment and Labour Relations Cause No. 616 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Judgment styled as a first appeal from the ELRC)
Relief refused
#Setting aside of the ELRC ruling striking out the suit and reinstatement of the appellants' claim
The proviso to Rule 9(2) gives the ELRC discretion to dispense with the letter of authority; no wrongful exercise of that discretion was demonstrated, and an appellate court will not interfere with a trial court's exercise of discretion absent misdirection or injustice.
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is however nothing wrong with the court hearing the parties and issuing orders on a mention date in the presence of all the parties, where as in this case, none of the parties objected to the hearing of the preliminary objection and all of them were heard on the issue.
It is to be remembered that this Court can only interfere with a trial court’s exercise of discretion in cases where it is shown to have been wrongly exercised.
Thirdly, the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in exercise of his discretion and that as a result there has been injustice.
We are not persuaded that the learned Judge erred in upholding the preliminary objection with the result that the appellant’s suit was struck out. We find this appeal devoid of merit and dismiss the same with costs to the respondent.
Issues in the judgment
#The judgment refers to the ELRC authority as 'Rule 9 of the Employment and Labour Relations Court Act' while elsewhere citing 'Rule 9(3) of the Employment & Labour Relations Court’s rules'; the provision is described inconsistently in the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harrison Otiende & 5 others v Badari Sacco Limited & 3 others [2019] KECA 808 (KLR)", Case Analysis (2019). Civil Appeal No. 75 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/808/eng@2019-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.