AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in the judgment· [2025] KEELRC 147 (KLR)
Mary Help the Sick Mission Hospital & another v Ngung’u (Employment and Labour Relations Appeal E198 of 2022) [2025] KEELRC 147 (KLR)
AI-assisted case brief
·~4 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court reinstated an appeal dismissed for delay, ruling parties can't be punished when the trial court itself delayed supplying typed proceedings.
What this practically means
#Executive summary
#The Applicants sought to set aside an order of 28th February 2024 by which the court dismissed their appeal for want of prosecution in their absence. Counsel for the Applicants, Mr. Okeche, explained that on the material day he was logged into another virtual court session handling a different matter, the matter was not on the day's cause list, and the appeal had been dismissed by the time he logged in. He attributed the failure to prosecute the appeal to the trial court's inordinate delay in supplying typed proceedings, despite the Federation of Kenya Employers applying for them immediately upon filing the appeal. The Respondent opposed, contending that the appeal was filed out of time and admitted only through consent, that the Applicants slept on their rights after dismissal through the taxation of costs, and that the application was an afterthought prompted by the Respondent's application for release of the decretal sum, litigation having dragged since 2018. The court framed a single issue: whether to set aside the order and re-open the appeal. Relying on a Certificate of Delay dated 2nd September 2024 showing certified proceedings were ready only on 29th August 2024, after the dismissal, the court held the delay was attributable to the trial court, not the Applicants, and that it would be unjust to punish them for it, despite the hardship to the Respondent. The court set aside the dismissal order, reinstated the appeal and cross appeal, and directed that they be disposed of by written submissions within seven working days sequentially, thereafter to be set down for judgment. Costs of the application were ordered to abide the outcome of the appeal.
Key legal issues
#01
Whether the order dismissing the appeal for want of prosecution should be set aside
Holding
Yes - the application was merited because the delay was not the Applicants' fault
Reasoning
The appeal could not be set down for hearing because the Record of Appeal was absent, and the Record could not be prepared without typed proceedings from the trial court. A Certificate of Delay dated 2nd September 2024 showed certified proceedings were only ready on 29th August 2024, long after dismissal. Blame lay with the trial court, not the Applicants, so it would be unjust to punish them, notwithstanding the hardship the delay caused the Respondent.
p. 2
Legal principles established
#- A party should not be punished for delay attributable to the trial court's failure to supply typed proceedings.
- Where the failure to set down an appeal stems from absence of a Record of Appeal caused by the trial court, it is unjust to dismiss the appeal for want of prosecution.
Court orders
#- 1.Set aside the order of 28th February 2024 dismissing the appeal for want of prosecution
- 2.Reinstate the appeal and cross appeal for hearing on merit
- 3.The appeal and cross appeal be heard by way of written submissions
- 4.The Appellants to file and serve submissions on the appeal and cross appeal within seven (7) working days of the order
- 5.The Respondent to file and serve submissions in response within seven (7) working days of service of the Appellants' submissions
- 6.Thereafter the court will set down the matter for judgment
- 7.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Inherent powers of the court to set aside its own orders; ELRC Procedure Rules (Rule 28(3) referenced on delivery mode)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Help the Sick Mission Hospital & another v Ngung’u (Employment and Labour Relations Appeal E198 of 2022) [2025] KEELRC 147 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/147/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.