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ELRCPartially AllowedBungoma CMEL Appeal (judgment delivered at Kakamega) — appeal from Bungoma CMEL Cause No. 13 of 2019· [2024] KEELRC 1389 (KLR)

Zetort Communications Ltd v Wamalwa (Employment and Labour Relations Appeal 7 of 2023) [2024] KEELRC 1389 (KLR)

Environment and Land Court / High Court seat (judgment delivered at Kakamega)
13 June 2024
JKJ. W. Keli
3,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that changing a hearing date without notifying a party violates their right to be heard, and ordered the entire case to start afresh.

What this practically means

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Executive summary

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Zetort Communications Ltd appealed the ruling of Hon. C.S. Mutai, SPM of 24/2/2023 in Bungoma CMEL Cause No. 13 of 2019 (Elyne Elizabeth Wamalwa v Zetort Communications Ltd, a wrongful termination claim), in which the trial court dismissed the appellant's application to re-open its defence case, admit its documents and witness statement of David Njau Mburu, and have the witness testify. The appeal, canvassed by written submissions, raised a single issue: whether the trial court undermined the appellant's right to a fair hearing. Reviewing the record, the court found that on 23rd September 2021 the hearing was deferred by the magistrate to 24th September 2021 with no record of service on the defence, and that the typed proceedings were erroneous on this point. The impugned ruling had wrongly relied on the 23rd September 2021 date, on which no hearing took place. The court held the appellant was denied an opportunity to be heard on 24th September 2021 and that a change of hearing date requires notice to an absent party. It also cautioned that Article 159(2)(d) is not a refuge for lazy litigants, penalising the appellant's untimely compliance with Order 11 in costs. The appeal was allowed: the trial ruling and all proceedings were set aside as a miscarriage of justice, the suit was ordered to be heard de novo on a priority basis, the defence documents filed on 22nd April 2022 were deemed filed, and the claimant was given liberty to file further statements or documents. The appellant was ordered to pay throw-away costs of Kshs. 50,000, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the appellant was denied a fair hearing when the trial court deferred the hearing of 23rd September 2021 to 24th September 2021 without notice

Holding

Yes — the appellant was not afforded an opportunity to be heard on 24th September 2021; the typed proceedings were erroneous and the impugned ruling wrongly relied on 23rd September 2021

Reasoning

The handwritten record showed the hearing was deferred to 24/9/2021 with no record of service on the defence of the new date. The impugned ruling addressed only 23rd September 2021, a day on which no hearing took place. The deferral appears to have been made suo moto, and justice requires notice of any changed hearing date to absent parties.

p. 6
02

Whether the trial court erred in refusing to re-open the defence case and admit the appellant's documents and witness

Holding

The refusal formed part of a miscarriage of justice given the irregular hearing, though the appellant's late compliance with Order 11 attracted throw-away costs

Reasoning

The court found the appellant had ample opportunity generally, and that allowing new evidence after closure of the claimant's case would have prejudiced the claimant, but the root problem was the irregular hearing date. On balance the entire proceedings were set aside and the matter remitted for hearing de novo with the defence documents deemed filed.

p. 7
03

Whether Article 159(2)(d) obliged the court to accommodate the appellant's non-compliance

Holding

No — the provision is not available to indolent litigants; the appellant's failure to comply with Order 11 was penalised in costs

Reasoning

The appellant did not disclose reasons for non-compliance with Order 11 of the Civil Procedure Rules, and its reliance on examination-in-chief under section 145 of the Evidence Act was misplaced since that provision merely defines examination-in-chief. The court allowed the appeal on the notice defect but punished the dilatory conduct in costs.

p. 6

Legal principles established

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  • A change of the date of hearing of a case calls for notice to the absent party; a party cannot be deemed heard on a date fixed suo moto without notice.
  • Article 159(2)(d) on procedural technicalities is not a refuge for indolent litigants.

Court orders

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  1. 1.The appeal is allowed and the Ruling of the Honourable C.S. Mutai, SPM delivered on 24/2/2023 in Bungoma Cause No. 13 of 2019 is set aside and replaced with an Order that there was miscarriage of justice.
  2. 2.All proceedings of the Trial Court are set aside.
  3. 3.The suit to be heard de novo by the Trial Court.
  4. 4.The defence witness statements and documents filed in court on 22nd April 2022 are deemed as filed.
  5. 5.The Claimant is at liberty to file further statements and/or documents in reply as the Trial Court may direct.
  6. 6.The Trial Court to hear the case on a priority basis.
  7. 7.Appellant to pay throw-away costs of Kshs. 50,000 to the Respondent within 30 days of judgment, failing which to attract interest at court rates.
  8. 8.Each party to bear its costs in the appeal.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50; Article 50(2)(k); Article 159(2)(d); Articles 40, 47
  • Employment Act, 2007general
  • Evidence ActSection 145(1)
  • Civil Procedure RulesOrder 11; Order 11(7)

Cases cited (3)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1948] EA 123
  • Martha Wangari Karua v The Independence Electoral & Boundaries Commission and Others
    Nyeri Civil Appeal No. 1 of 2017
  • Banco Arabe Espanol v Bank of Uganda
    [1999] 2 EA 22
On appeal from
Bungoma Chief Magistrate's Court (CMEL Cause No. 13 of 2019)
Bungoma CMEL Cause No. 13 of 2019
Jurisdiction invoked
First appellate jurisdiction over subordinate court ruling in an employment cause (appeal against ruling of the SPM)

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, "Zetort Communications Ltd v Wamalwa (Employment and Labour Relations Appeal 7 of 2023) [2024] KEELRC 1389 (KLR)", Case Analysis (2024). Bungoma CMEL Appeal (judgment delivered at Kakamega) — appeal from Bungoma CMEL Cause No. 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1389/eng@2024-06-13

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