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ELRCDismissedNot stated on the face of the judgment (appeal from Mombasa CMELRC No. E09 of 2022)· [2024] KEELRC 396 (KLR)

Mewa Hospital v Khator (Appeal E090 of 2023) [2024] KEELRC 396 (KLR)

Employment and Labour Relations Court
15 February 2024
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Mombasa against a ruling of the learned magistrate Hon. J.B. Kalo delivered on 10 August 2023 in Mombasa CMELRC No. E09 of 2022. The magistrate had dismissed the appellant's application dated 5 May 2023 seeking to set aside the ex parte judgment of 6 April 2023 and for unconditional leave to defend the claim, on grounds including lack of proper service of summons. The respondent, the claimant before the trial court, filed written submissions and opposed the appeal, pointing to proper service, the appellant's entry of appearance without any response, service of a hearing notice through its advocate, and non-attendance at the hearing. The appellant filed no submissions and did not attend court on the appeal. The court, M. Mbarũ J, restated the mandate of a first appellate court to re-evaluate the evidence with due allowance for not having seen the witnesses, and noted that under the Employment and Labour Relations Court (Procedure) Rules, 2016 it could determine the matter on the pleadings, affidavits, documents and submissions on record. The court held that the trial magistrate had analysed the affidavits, set out the procedural history with dates, and applied case law, so that his exercise of discretion was sound and could not be faulted absent demonstration that it fell outside known norms and principles. The appellant's failure to file submissions meant the court was denied crucial material to justify disturbing the trial court's decision. The appeal was found without merit, the judgment in Mombasa CMELRC No. E093 of 2022 was confirmed, and the appeal was dismissed with costs, the appellant also bearing the costs of the lower court proceedings.

Key legal issues

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01

Scope of the first appellate court's mandate

Holding

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.

Reasoning

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.

p. 2
02

Whether the trial magistrate's discretion in dismissing the setting-aside application was properly exercised

Holding

Yes; the magistrate detailed the service and non-attendance history, analysed the affidavits and applied case law, and the findings cannot be faulted.

Reasoning

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.

p. 3
03

Effect of the appellant's failure to file written submissions and attend court

Holding

The failure deprived the appellate court of crucial material justifying the appeal; the Memorandum of Appeal alone was insufficient.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The judgment in Mombasa CM ELRC No. E093 of 2022 is confirmed
  2. 2.The appeal is found without merit and is dismissed with costs
  3. 3.The appellant shall also bear costs of the lower court proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Civil Procedure Actsection 78
  • Civil Procedure RulesOrder 5
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 4, 13 and 21

Cases cited (6)

  • Igiro v Republic (Criminal Appeal 41 of 2022) [2023] KECA 926 (KLR)
    [2023] KECA 926 (KLR)
  • Livestock Research Organization v Okoko & another (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR)
    [2022] KEHC 3302 (KLR)
  • Mbogo & another v Shah [1968] EA
    [1968] EA
  • Francis Wambugu v Babu Owino & others, SC Petition No. 15 of 2018
    SC Petition No. 15 of 2018
  • Stanley Kang'ethe Kinyanjui v Toney Ketter & 2 others Civil Application No. Nai 31 of 2012
    Civil Application No. Nai 31 of 2012
  • Rosco Kibara Mangaara v Deputy County Commissioner Tharaka South Sub county & 3 others; Paul Kirimi Kiria (Interested Party) [2021] eKLR
    [2021] eKLR
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

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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, "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.