Kiteke v Unigroup Transporters (Appeal 64 of 2021) [2023] KEELRC 1892 (KLR)
The bottom line
#Kenya's Employment Court set aside a Mombasa magistrate's ruling because it was based on a claim that a response was never filed, when the court record showed it was filed and served.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in allowing the Respondent's review application on the basis that the Appellant had not filed a response
The appeal succeeded because the sole basis for allowing the application was factually wrong - the Appellant had duly filed and served a replying affidavit ten days before the ruling
The trial court allowed the Respondent's Notice of Motion dated June 3, 2021 'since the Respondent/claimant failed to file response to the application'. However, the record clearly showed the Appellant filed a replying affidavit on July 15, 2021 and served it on the Respondent's counsel on July 16, 2021 at 12:06 hrs. The impugned ruling was delivered ten days later. Since the alleged non-filing was the sole basis of the ruling, the appellate court found the appeal merited and set the ruling aside.
The scope of a first appellate court's review in an interlocutory appeal
Evidence taken in ex parte proceedings is not subject to re-evaluation; the court examines the whole record to make an informed and fair decision
The court characterized the matter as an interlocutory appeal from an application seeking review of a ruling refusing to set aside ex parte proceedings. It held that whatever evidence was taken in the ex parte proceedings was not subject to re-evaluation and scrutiny, but the court must look at the entire record, including the application from which the impugned ruling flows, and make an informed and fair decision.
Legal principles established
#- A first appellate court has a duty to subject the whole of the evidence to a fresh and exhaustive scrutiny, bearing in mind it did not hear the witnesses first hand
- An interlocutory appeal does not permit re-evaluation of evidence taken in ex parte proceedings; the appellate court examines the entire record to make an informed and fair decision
Court orders
#- 1.The trial Court's ruling in Mombasa CM ELR Cause No 458 of 2018 delivered on August 26, 2021 is set aside
- 2.The lower Court's judgment scheduled for delivery on June 10, 2021 shall be rescheduled for delivery forthwith and shall be delivered
- 3.Costs of the appeal awarded to the Appellant
- On appeal from
- Principal Magistrate's Court, Mombasa (ELRC)
- Mombasa CM ELR Cause No 458 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over interlocutory rulings of the magistrates' court in employment and labour relations matters (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiteke v Unigroup Transporters (Appeal 64 of 2021) [2023] KEELRC 1892 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal (from Mombasa CM ELR Cause No 458 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1892/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.