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ELRCPartially AllowedAppeal against judgment in MCELRC No. 908 of 2019· [2023] KEELRC 2901 (KLR)

Lintons Place Limited v Kamau & 2 others (Appeal E064 of 2022) [2023] KEELRC 2901 (KLR)

Employment and Labour Relations Court
6 November 2023
5,062 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 threw out a default judgment against an employer because the ex-employees never proved they served it with a hearing notice.

What this practically means

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Executive summary

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Lintons Place Limited appealed against the judgment of Principal Magistrate Hon. A.S. Lesootia delivered on 9th May 2022 in CMEL No. 908 of 2019, in which Stanley Karanu Kamau and two others obtained judgment against it on claims arising from termination through outsourcing of security services. The Appellant advanced 30 grounds, collapsing into three themes: denial of a fair trial through the ex parte hearing of 8th March 2022 without proof of service; procedural unfairness thereafter, including non-service of mention and judgment notices; and errors of law in the judgment on redundancy, severance, leave, house allowance and damages. The Appellant sought setting aside of the judgment and a new trial. The Respondents maintained that the 1st Respondent was authorised to act for all under Rule 9 of the ELRC Procedure Rules, 2016, that a hearing notice dated 17th January 2022 and a return of service dated 7th March 2022 were on the record, and that the trial court correctly found unlawful redundancy and awarded reliefs. The court, exercising its first appellate duty, perused the original record and found no notice of hearing and no affidavit of service on the record for the 8th March 2022 hearing, and that the Respondents did not demonstrate service. The Appellant's right to a fair hearing was therefore impacted, compromising the judgment. The appeal was allowed: the judgment and decree were set aside ex debito justitiae, attached goods were to be released unconditionally, the suit was remitted for a fresh trial before a different magistrate, with a mention before the Chief Magistrate on 14th November 2023, and each side to bear its own costs of the appeal.

Key legal issues

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01

Whether service of the hearing notice for the ex parte hearing was proved

Holding

No notice of hearing or affidavit/return of service was on the record proving service of the 8th March 2022 hearing date; the Respondents did not demonstrate service, so the trial court should not have proceeded ex parte

Reasoning

The court perused the original record of CMEL No. 908 of 2019 and found that although the Appellant had been served with pre-trial and date-fixing notices earlier, no notice of hearing was filed and no affidavit of service existed on the record for the 8th March 2022 hearing. The court therefore could not sustain the ex parte proceedings or the judgment flowing from them.

p. 9
02

Consequences of denial of fair hearing on the judgment below

Holding

A judgment entered without service and hearing is compromised and must be set aside ex debito justitiae, with the matter remitted for a fresh trial

Reasoning

Because the Appellant was not served, it was denied the opportunity to challenge the evidence adduced at the hearing; the Respondents proceeded as if the claim was undefended. The denial of a fair hearing was determinative, rendering it unnecessary to examine the merits-based grounds of appeal in detail.

p. 9
03

Merits of the redundancy, reliefs and damages findings

Holding

Not determined; once a breach of the right to a fair hearing is found, consideration of the merits becomes unnecessary

Reasoning

The Appellant had argued that if the ex parte proceedings breached its right to a fair trial, it would be moot to consider the merits of the judgment. The court's finding on service and fair hearing disposed of the appeal, and the matter was remitted for a hearing afresh before a different magistrate rather than determined on the merits.

p. 9

Legal principles established

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  • Proceeding with a hearing without proof of service of a hearing notice on a party denies that party a fair hearing and compromises the resulting judgment
  • An appellate court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions

Court orders

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  1. 1.The Judgment of the Learned Magistrate issued on 9th May 2022 and the Decree dated 24th May 2022 in MCELRC No. 908 of 2019 set aside ex debito justitiae
  2. 2.Immediate and unconditional release of the goods of the Appellant attached in execution of the decree of the Trial Court
  3. 3.The file being MCELRC No. 908 of 2019 be heard afresh before any other Learned Magistrate at Milimani Commercial Law Courts authorised to hear employment matters
  4. 4.A mention before Chief Magistrate on 14th November 2023 for allocation to the Learned Magistrate who will hear the case
  5. 5.Each side to bear their own costs of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 25
  • Employment Act 2007sections 40, 40(1), 45(2)(b)(ii), 47(5), 49(1)(c), 49(4), 31, 31(1), 35(6)(d), 74
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 9(1), 9(2), 22(1), 22(1)(b)
  • Employment and Labour Relations Court Act, 2011sections 29(3) and (4)(b)
  • Civil Procedure Act (Order 42 rule 6(5))Order 42 rule 6(5)

Cases cited (9)

  • JMK v MWM & another
    [2015] eKLR
  • Blue Sky Epz limited v Natalia Polyakova & another
    [2007] eKLR
  • Cooperative Bank of Kenya Limited v Yator
    (Civil Appeal 87 of 2018) [2021] KECA 95
  • Bwire v Wayo & Sailoki
    (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR)
  • Abok James Odera t/a Al Qdera & Associates v John Patrick Machira t/a Machira
    [2013] eKLR
  • Jennifer Kaindi Kithure v Magondu M'igweta & 2 others
    [2021] eKLR
  • Billiah Matiangi v Kisii Bottlers Limited & another
    [2021] eKLR
  • Maurice Wandera Egesa v Inter-Security Service Limited
    [2016] eKLR
  • Trebar Marambe v For You Chinese Restaurant
    [2021] eKLR
On appeal from
Principal Magistrate's Court, Milimani Chief Magistrates Court Nairobi
CMEL No. 908 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeals from the Employment and Labour Relations Court subordinate court (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, "Lintons Place Limited v Kamau & 2 others (Appeal E064 of 2022) [2023] KEELRC 2901 (KLR)", Case Analysis (2023). Appeal against judgment in MCELRC No. 908 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2901/eng@2023-11-06

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