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ELRCDismissedELRC Appeal No.8 of 2016 (formerly Mombasa High Court Civil Appeal No.61 of 2009)· [2023] KEELRC 2263 (KLR)

Kenya Ports Authority v Wandera (Suing as the Administrattix of the Estate of Alois Wandera Odhiambo - Deceased) (Appeal 8 of 2016) [2023] KEELRC 2263 (KLR)

Employment and Labour Relations Court
21 September 2023
806 words in judgment
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The bottom line

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Kenya's Employment Court dismissed Kenya Ports Authority's 14-year-old appeal because its lawyers claimed to have filed submissions that never appeared on the court record.

What this practically means

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Executive summary

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This was an appeal before the Employment and Labour Relations Court at Mombasa, originally lodged as Mombasa High Court Civil Appeal No.61 of 2009 and transferred and registered as ELRC Appeal No.8 of 2016. It challenged the summary judgment of Hon. M. K. Mwangi delivered on 13 March 2009 in Mombasa CMCC No.2198 of 2008 (Jennifer Alois Wandera, as administratrix of the estate of Alois Wandera Odhiambo, v Kenya Ports Authority), on grounds that the summary judgment was erroneous and that the magistrate denied the appellant a fair hearing contrary to natural justice. After a ruling on a preliminary point on 9 December 2016, the file lay dormant until a notice to show cause in April 2023 revived it. Directions were issued for the appeal to be canvassed by written submissions across multiple mention dates in May, June and July 2023. The appellant's advocates, Messrs Kyandih and Cheruiyot, repeatedly asserted that submissions had been filed and served, but the court found no submissions on the physical file or the Case Tracking System, and the respondent denied service and filed nothing. The court concluded that the appellant's inaction and misrepresentations demonstrated loss of interest after 13 years of delay, dismissed the appeal, noted the respondent's non-cooperation, and ordered each party to bear their own costs. Judgment was delivered in open court at Mombasa on 21 September 2023 by M. Mbarũ, Judge.

Key legal issues

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01

Whether the appeal could proceed without written submissions on the record

Holding

The appeal was dismissed because no written submissions were on the record, physical or on the Case Tracking System, despite the appellant's advocates claiming they had filed and served them

Reasoning

The court traced the procedural history: directions for written submissions issued on multiple dates in 2023, the appellant's advocates repeatedly claimed the submissions had been filed and served, yet neither the physical file nor the CTS portal contained them. The respondent denied service and later failed to attend or respond. The court held that after 13 years of delay, including 7 years before this court, and given the indulgence granted following a notice to show cause, the appeal could not be maintained.

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02

Whether the inordinate delay and non-cooperation by both parties warranted dismissal with each party bearing own costs

Holding

The court dismissed the appeal and noted the respondent's lack of cooperation, ordering each party to bear their own costs

Reasoning

The court observed that the appellant's sheer inaction caused 13 years of delay, that no reasons were given for the absence of submissions after a notice to show cause, and that the respondent had also not been cooperative in the proceedings. Both factors informed the dismissal and the neutral costs order, with no party awarded costs against the other.

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Legal principles established

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  • An appellant who fails to file written submissions to support the appeal, after being indulged by the court, risks dismissal of the appeal; inaction and misrepresentation of service indicate loss of interest

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear own costs
On appeal from
Chief Magistrate's Court, Mombasa
Mombasa CMCC No.2198 of 2008
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from subordinate courts (transferred from the High Court; the judgment does not cite a specific provision)

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, "Kenya Ports Authority v Wandera (Suing as the Administrattix of the Estate of Alois Wandera Odhiambo - Deceased) (Appeal 8 of 2016) [2023] KEELRC 2263 (KLR)", Case Analysis (2023). ELRC Appeal No.8 of 2016 (formerly Mombasa High Court Civil Appeal No.61 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2263/eng@2023-09-21

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