Lintons Place Limited v Kamau & 2 others (Appeal E064 of 2022) [2023] KEELRC 2901 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether service of the hearing notice for the ex parte hearing was proved
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
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.
Consequences of denial of fair hearing on the judgment below
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
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.
Merits of the redundancy, reliefs and damages findings
Not determined; once a breach of the right to a fair hearing is found, consideration of the merits becomes unnecessary
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.
Legal principles established
#- 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
#- 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.Immediate and unconditional release of the goods of the Appellant attached in execution of the decree of the Trial Court
- 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.A mention before Chief Magistrate on 14th November 2023 for allocation to the Learned Magistrate who will hear the case
- 5.Each side to bear their own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.