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ELRCPartially AllowedNot stated in judgment (appeal from Mombasa CMELRC No. 331 of 2019)· [2024] KEELRC 1558 (KLR)

Twaweza Apparel (EPZ) Limited v Okoth & another (Appeal E012 of 2024) [2024] KEELRC 1558 (KLR)

Employment and Labour Relations Court
13 June 2024
1,009 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 reinstated a dismissed appeal because no hearing notices were served, but penalized the appellant for its own years of inaction.

What this practically means

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Executive summary

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The appellant filed a notice of motion dated 3 May 2024 seeking to set aside the order of 29 May 2023 (issued 19 March 2024) dismissing its appeal for want of attendance, and to reinstate the appeal. The appeal, filed on 14 February 2023 by Memorandum of Appeal dated 2 February 2023, challenged a ruling delivered on 17 June 2022 in Mombasa CMELRC No. 331 of 2019, in which the court had dismissed the appellant's Notice of Objections to execution for failure to prove it was a separate legal entity from the 2nd respondent. The 1st respondent opposed the application, arguing that the appellant had taken no step to prosecute the appeal and that execution should proceed. The court found that no notices of the mentions fixed for 17 and 29 May 2023 were served on the parties, an omission that breached the constitutional guarantees of fair hearing (article 50(1)) and fair administrative action requiring written notice before adverse action (article 47). However, the appellant was also culpable: after filing the Memorandum of Appeal it did nothing to prosecute the appeal or comply with rule 8 of the ELRC (Procedure) Rules, 2016, and was only moved to act when auctioneers proclaimed its property on 17 April 2024. In the interests of justice, the court conditionally reinstated the appeal, denied the appellant its costs, and assessed the 1st respondent's costs of the application at Kshs. 10,000 payable within 14 days. Parties were to attend on 17 June 2024 to address section 17 of the ELRC Act, 2011 and rule 8 of the Procedure Rules.

Key legal issues

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01

Effect of failure to serve notices before dismissal of an appeal for want of attendance

Holding

The dismissal was irregular because the court registry failed to serve notices for the mentions of 17 and 29 May 2023; the appellant could not know the matter was coming up, engaging the fair hearing and fair administrative action guarantees of articles 50(1) and 47 of the Constitution.

Reasoning

The court accepted that no notices were served for either mention date. It held that the court ought to have served notices and issued a written notice before taking the adverse action of dismissing the appeal. Absent service, the appellant was unaware of the proceedings, and the dismissal could not stand. However, the court balanced this against the appellant's own lethargy, granting reinstatement only conditionally and with costs to the respondent.

p. 2
02

The applicant's own inaction and duty to prosecute an appeal

Holding

Although reinstatement was granted, the appellant was at fault for filing a Memorandum of Appeal and taking no further step to prosecute it, including non-compliance with rule 8 of the ELRC (Procedure) Rules, 2016; it therefore could not claim costs and was ordered to pay the respondent's costs.

Reasoning

The court observed that apart from filing the Memorandum of Appeal on 14 February 2023, the appellant did nothing until execution was levied against it following the decree of 18 January 2024. Its interest in the appeal was only prompted by the respondent's execution. The court therefore denied the appellant its costs, assessed the 1st respondent's costs at Kshs. 10,000, and directed the parties to address compliance with rule 8 at the first directions hearing.

p. 2

Legal principles established

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  • Before an adverse order such as dismissal for want of attendance is made, the parties must be served with written notice, per article 47 of the Constitution on fair administrative action
  • Reinstatement of an appeal dismissed without notice may be granted conditionally, in the interests of justice, with the applicant bearing costs to compensate the respondent for the delay

Court orders

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  1. 1.The order dismissing the appeal made on 29 May 2023 and issued on 19 March 2024 is conditionally set aside and the appeal reinstated
  2. 2.The appellant to pay the 1st respondent Kshs. 10,000 as costs of the application, to be paid within 14 days
  3. 3.Parties to attend court on 17 June 2024 to address the court on section 17 of the Employment and Labour Relations Court Act, 2011 and rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Jurisdiction invoked
Appellate and supervisory jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate CMELRC (Mombasa CMELRC No. 331 of 2019); Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Twaweza Apparel (EPZ) Limited v Okoth & another (Appeal E012 of 2024) [2024] KEELRC 1558 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Mombasa CMELRC No. 331 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1558/eng@2024-06-13

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