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ELRCPartially AllowedMombasa ELRC Appeal (from Mombasa CM ELR Cause No 458 of 2018)· [2023] KEELRC 1892 (KLR)

Kiteke v Unigroup Transporters (Appeal 64 of 2021) [2023] KEELRC 1892 (KLR)

Employment and Labour Relations Court
31 July 2023
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an interlocutory appeal to the Employment and Labour Relations Court at Mombasa against a ruling of Hon. M. L. Nabibya, Principal Magistrate, delivered on August 26, 2021 in Mombasa CM ELR Cause No 458 of 2018. The underlying suit was by a truck driver claiming unfair termination on medical grounds on June 30, 2018, seeking notice pay, house allowance, severance, compensation and a declaration. After ex parte hearing on January 19, 2021, the Respondent's application to set aside those proceedings was dismissed on March 18, 2021; its appeal against that ruling was withdrawn, whereupon it filed a review application dated June 3, 2021 seeking to arrest judgment and to review the March 18 ruling. The trial court allowed the review application solely because it believed the Appellant had not filed a response. Aggrieved, the Appellant appealed, seeking setting aside of the ruling, delivery of the arrested judgment, entry of an award and costs. Nzei J, citing the duty of a first appellate court as set out in Easy Coach Bus Services (referred to by the Appellant but not adopted as a binding holding), found from the record that the Appellant had filed and served a replying affidavit on July 15 and 16, 2021, ten days before the impugned ruling. Since the alleged failure to respond was the sole basis of the ruling, the appeal was allowed: the ruling of August 26, 2021 was set aside and the arrested judgment was to be rescheduled for delivery forthwith. Costs of the appeal were awarded to the Appellant.

Key legal issues

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01

Whether the trial court erred in allowing the Respondent's review application on the basis that the Appellant had not filed a response

Holding

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

Reasoning

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.

p. 4
02

The scope of a first appellate court's review in an interlocutory appeal

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The trial Court's ruling in Mombasa CM ELR Cause No 458 of 2018 delivered on August 26, 2021 is set aside
  2. 2.The lower Court's judgment scheduled for delivery on June 10, 2021 shall be rescheduled for delivery forthwith and shall be delivered
  3. 3.Costs of the appeal awarded to the Appellant

Authorities

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Legislation

  • Employment ActSections 35, 43, 45 and 49

Cases cited (1)

  • Easy Coach Bus Services & Another v Henry Charles Tsuma & Another (suing as the Administrators and Personal Representatives of Josephine Weyanga Tsuma)
    [2019] eKLR
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

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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, "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.