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ELRCStruck OutMiscellaneous Application dated 4th October 2021 (arising from Milimani CMEL No E1009 of 2020)· [2021] KEELRC 423 (KLR)

Three Brothers Vehicles & Spares Kenya Ltd v Margaret Mongina Kwaba [2021] KEELRC 423 (KLR)

Employment and Labour Relations Court
23 November 2021
983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck down an employer's attempt to overturn a default judgment because no appeal had actually been filed.

What this practically means

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Executive summary

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The Applicant, Three Brothers Vehicles and Spares Kenya Limited, brought a Miscellaneous Application dated 4th October 2021 before the Employment and Labour Relations Court seeking stay of execution of orders and decree dated 1st October 2021, issued by Hon. Muholi, PM in Milimani CMEL No E1009 of 2020 (Margaret Mongina Kwaba v Three Brothers Vehicles and Spares Kenya Limited), together with setting aside of the default judgment, re-opening of the case with leave to file a defence, and re-assignment before another Magistrate. The Applicant complained that its own urgent application e-filed on 23rd September 2021 was ignored while the Respondent's application filed on 30th September 2021 was heard and granted the following day, allegedly violating its right to be heard. The Respondent opposed the application as incompetent and an abuse of process, asserting that he was never served with the Applicant's application, that the Applicant had failed to enter appearance or defend the claim, and that his application for execution was granted on merit. The Court held that in matters arising from the Magistrates' Courts it exercises appellate jurisdiction, and no appeal was on file. It further held that there was no legal basis to take over a substantive matter pending before the Magistrate's Court, and that the accusations against the Trial Court were unsupported by evidence. The Court struck out the application with costs to the Respondent and vacated the interim orders granted on 5th October 2021. Delivered virtually at Nairobi on 23rd November 2021 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the ELRC can entertain substantive interlocutory relief from a Magistrates' Court matter without an appeal on file

Holding

It cannot; the application was incompetent and was struck out

Reasoning

The Court held that where it deals with matters arising from the Magistrates' Courts it exercises appellate jurisdiction. Since no appeal had been filed, and the Applicant instead sought the very substantive orders it had asked the Trial Court to grant, the Court lacked legal authority to take over and determine a matter pending before the Magistrate's Court. The allegations of denial of the right to be heard were mere assertions unsupported by evidence, leaving the application incompetent.

p. 2
02

Whether the Applicant's right to be heard was violated by the Trial Court's alleged failure to act on its urgent application

Holding

No violation was established on the material before the Court

Reasoning

The Applicant alleged that its e-filed application of 23rd September 2021 was ignored while the Respondent's later application was granted urgently. The Respondent denied being served with that application and asserted that the Applicant had slept on its rights, having failed to enter appearance or defend the claim. The Court found that the accusations against the Trial Court were not supported by any evidence and therefore could not ground relief.

p. 2

Legal principles established

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  • In dealing with matters arising from the Magistrates' Courts, the ELRC exercises appellate jurisdiction and cannot determine a substantive matter pending before the Magistrate's Court in the absence of an appeal

Court orders

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  1. 1.The Miscellaneous Application dated 4th October 2021 is struck out with costs to the Respondent
  2. 2.The interim orders granted on 5th October 2021 are vacated
On appeal from
Magistrates' Court (Milimani)
CMEL No E1009 of 2020
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over matters arising from the Magistrates' Courts

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Three Brothers Vehicles & Spares Kenya Ltd v Margaret Mongina Kwaba [2021] KEELRC 423 (KLR)", Case Analysis (2021). Miscellaneous Application dated 4th October 2021 (arising from Milimani CMEL No E1009 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/423/eng@2021-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.