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ELRCStruck OutKericho CMCC (ELRC) Appeal No. 8 of 2020 (as styled in judgment)· [2024] KEELRC 2867 (KLR)

Rotich v Mogogosiek Tea Factory (Appeal E004 of 2022) [2024] KEELRC 2867 (KLR)

Environment and Labour Relations Court...
7 November 2024
DNDavid Nderitu
2,538 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho employment appeal was struck out because the appellant never followed court directions and couldn't prove the consent he relied on.

What this practically means

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Executive summary

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This is a first appeal from the Chief Magistrate's Court at Kericho. The appellant's employment claim in Kericho CMCC (ELRC) No. 8 of 2020 was struck out by Hon. S. M. Mokua (CM) on 16th December 2021 for want of supporting evidence, the parties having consented to dispose of the matter by written statements and submissions without oral testimony. A subsequent application for review was refused by Hon. E. K. Makori (CM) on 15th June 2022, who advised that an appeal, not review, was the proper remedy, as he could not sit on appeal over a ruling by his equal. The appellant then filed the present appeal, but the memorandum of appeal confused the two rulings: it sought to set aside the Makori ruling while the grounds and submissions attacked the Mokua ruling. On 20th March 2024 the court granted leave to amend the memorandum and file a supplementary record, but the appellant did not comply. Hearing the appeal by written submissions, the appellant's counsel argued that a duly adopted consent bound the trial court and that striking out the claim violated the right to fair hearing under Article 50(1); respondent's counsel submitted that no evidence was adduced and that submissions cannot replace evidence. The court found no consent on the record capable of speculation, upheld the Makori ruling as correct in law, and struck out the appeal as incompetent for the appellant's failure to heed the court's directions, with no order as to costs.

Key legal issues

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01

Whether a consent to dispose of the claim by written submissions was on record

Holding

No consent was found on the record before the court

Reasoning

The court examined the typed proceedings and handwritten notes and found no consent recorded as alleged by both counsel. Any such consent, if it existed, was outside the record of appeal and could not be speculated upon. This finding disposed of the first three issues, since the complaint rested on breach of an unproven consent.

p. 6
02

Whether the ruling of 15th June 2022 by Hon. Makori was properly subject to appeal

Holding

The High Court (ELC/ELRC) held Hon. Makori's ruling was correct; he could not sit on appeal over Hon. Mokua's ruling

Reasoning

Hon. Makori had declined to review Hon. Mokua's ruling of 16th December 2021, correctly advising that an appeal lay instead, since review by an equal-rank magistrate would amount to sitting as a superior court. The court held that this ruling was right and that the appeal, as framed against it, had nothing to challenge.

p. 6
03

Whether the appeal was competent

Holding

The appeal was struck out as incompetent for failure to follow the court's directions and for internal confusion between the two rulings appealed against

Reasoning

The memorandum of appeal challenged the Makori ruling while the submissions and grounds targeted the Mokua ruling. The court had granted leave to amend on 20th March 2024, but the appellant did not comply. With the second chance squandered, striking out was the only option, with no order as to costs.

p. 6

Legal principles established

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  • A magistrate has no power to sit on appeal over, or review, the ruling of a magistrate of equal rank; the proper remedy is an appeal to the superior court
  • A consent said to have been adopted by the court must appear on the record; the court cannot speculate on matters outside the record of appeal

Court orders

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  1. 1.The appeal is struck out for being incompetent
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 50(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 25(2) and 27(1)

Cases cited (2)

  • Kenya Power & Lighting Company Limited v Kenya Electrical Traders & Allied Workers Union
    (2017) eKLR
  • Dominic Ndegwa Kiere v Mercy Muthoni Ndung'u & Another
    (2016) eKLR
On appeal from
Chief Magistrate's Court at Kericho (ELRC)
ELRC No. 8 of 2020
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court Act; appeal against rulings of the Chief Magistrate's Court)

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, "Rotich v Mogogosiek Tea Factory (Appeal E004 of 2022) [2024] KEELRC 2867 (KLR)", Case Analysis (2024). Kericho CMCC (ELRC) Appeal No. 8 of 2020 (as styled in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2867/eng@2024-11-07

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