Mewa Hospital v Khator (Appeal E090 of 2023) [2024] KEELRC 396 (KLR)
The bottom line
#The Employment Court in Mombasa dismissed an appeal because the appellant skipped court and filed no written submissions, so the original judgment stands and costs were awarded against the appellant.
What this practically means
#Executive summary
#Key legal issues
#Scope of the first appellate court's mandate
The court must reconsider and re-evaluate the evidence itself and draw its own conclusions, making due allowance for not having seen or heard the witnesses.
Relying on Igiro v Republic and Livestock Research Organization v Okoko, and section 78 of the Civil Procedure Act, the court restated the duty of a first appellate court to conduct a full re-evaluation of the evidence, mindful that it did not observe witness demeanour as the trial court did.
Whether the trial magistrate's discretion in dismissing the setting-aside application was properly exercised
Yes; the magistrate detailed the service and non-attendance history, analysed the affidavits and applied case law, and the findings cannot be faulted.
The appellant was served with summons, entered appearance but filed no response, and was served with a hearing notice through its advocate but did not attend. The setting-aside application invoked the trial court's discretion, which was exercised with sound grounds and justified reasons. The appellant filed no submissions to show the discretion was exercised outside known norms.
Effect of the appellant's failure to file written submissions and attend court
The failure deprived the appellate court of crucial material justifying the appeal; the Memorandum of Appeal alone was insufficient.
The appellant agreed to address the appeal by written submissions but did not comply and did not attend the mention. Without submissions addressing why the trial court was at fault, the court found no foundation of reasons demonstrated, relying on Stanley Kang'ethe Kinyanjui v Tony Ketter on the judicial exercise of discretion.
Legal principles established
#- A first appellate court must re-evaluate and re-analyse the evidence before the trial court while making allowance for not having seen or heard the witnesses.
- Discretionary power must be exercised judicially, not capriciously or whimsically.
- A party who challenges the exercise of judicial discretion must show it was applied outside known norms and principles.
- Under the ELRC Procedure Rules, the court may determine a suit on the basis of the pleadings, affidavits, documents filed and submissions.
Court orders
#- 1.The judgment in Mombasa CM ELRC No. E093 of 2022 is confirmed
- 2.The appeal is found without merit and is dismissed with costs
- 3.The appellant shall also bear costs of the lower court proceedings
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa CMELRC No. E09 of 2022
- Jurisdiction invoked
- Appeal from the subordinate court; the court notes its specialised mandate under Article 162(2)(a) of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mewa Hospital v Khator (Appeal E090 of 2023) [2024] KEELRC 396 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (appeal from Mombasa CMELRC No. E09 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/396/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.