Anthony Kiti Ndaje & 4 others v Milly Fruits Processing Limited
The bottom line
#Kenya's Court of Appeal confirmed that employment suits left dormant for years will stay dismissed unless claimants offer a credible, compelling explanation for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC erred in dismissing the application to set aside the dismissal of the suit for non-attendance
The appeal fails; the learned Judge's discretionary decision was not faulty and is upheld.
Rule 22(2) of the ELRC (Procedure) Rules, 2016 permits dismissal for non-attendance except for good reason. The claimants gave no credible explanation for their absence on 22nd March 2022, and the suit had lain unheard for some seven years. Allowing perpetually dormant suits offends Article 159(2)(b) and (d) of the Constitution. Applying Joseph Lendrix Waswa v Republic and United India Insurance, no ground for interfering with discretion was established.
Appellate court's power to disturb a discretionary decision
Interference is warranted only where the judge misdirected herself, was clearly wrong, and injustice resulted.
Relying on the Supreme Court in Joseph Lendrix Waswa v Republic and Madan, JA in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, the Court restated the five established grounds for interfering with discretionary decisions and found none present on a close scrutiny of the appellants' case.
Legal principles established
#- Where claimants fail to prosecute their cause with diligence over an inordinate period without credible explanation, the court is entitled, and obligated by the overriding objective, to dismiss the suit to protect the integrity of the judicial process.
- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took or failed to take account of relevant considerations, or the decision is plainly wrong.
- A suit remaining unheard on its merits for approximately seven years constitutes inordinate delay on its face, requiring compelling justification from the claimant.
Court orders
#- 1.The appeal fails and is dismissed with costs to the respondent.
- 2.The ruling and order of the ELRC (A. M. K. Nzei, J.) dated 10th November 2022 is upheld.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- ELRC Cause No. 651 of 2015 (ruling dated 10th November 2022)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court (interlocutory appeal against a ruling on an application to set aside dismissal for non-attendance); no specific provision is quoted in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Kiti Ndaje & 4 others v Milly Fruits Processing Limited", Case Analysis (2026). ELLC Appeal (Mombasa) - interlocutory appeal from ELRC Cause No. 651 of 2015 (as stated in judgment; no appeal number printed). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/925/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.