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ELRCDismissedELRC Appeal (Kakamega), memorandum of appeal dated 22nd February, 2024· [2025] KEELRC 480 (KLR)

Teachers Service Commission v Akuyava (Appeal E001 of 2024) [2025] KEELRC 480 (KLR)

Employment and Labour Relations Court of Kenya at Kakamega
20 February 2025
DNDAVID NDERITU
3,775 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 confirmed a sacked teacher's case will proceed, ruling that minor procedural mistakes cannot block justice.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kakamega against a ruling of the Chief Magistrate's Court delivered on 8th February 2024, which reinstated the respondent's claim (ELRC Cause No. E012 of 2023) after it was dismissed for non-attendance on 25th January 2024, with no orders as to costs. The Teachers Service Commission, through counsel, raised ten grounds condensable into three issues: whether the trial court violated fair hearing rights by ruling without hearing submissions; whether the application was fatally defective for citing a non-existent provision (Order 17 Rule 9); and whether the threshold under Order 12 Rule 7 for reinstatement was met. The court, sitting as first appellate court and applying Selle v Associated Motor Boat Co. Ltd, found the misquotation of provisions a curable technicality under Order 51 Rule 10(1) and Article 159(2)(d). It held that absence of submissions did not violate Article 50 since the appellant's replying affidavit was on record and considered, and that neither party had filed submissions. On reinstatement, the court applied Mbogo v Shah and Mrao Ltd v First American Bank on interference with discretionary decisions, and found the respondent's same-day explanation of arriving late for hearing showed no deliberate obstruction of justice. The appeal was dismissed in its entirety, the reinstatement ruling affirmed, the lower court cause directed to be mentioned before the Deputy Registrar within seven days for priority allocation of a hearing date, and the respondent awarded costs of the appeal.

Key legal issues

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01

Whether the application for reinstatement was fatally defective for being brought under a non-existent provision (Order 17 Rule 9 of the Civil Procedure Rules, 2020)

Holding

The defect was a curable technicality; the application was substantively made under Order 12 Rule 7 and could not be refused for misquotation of provisions.

Reasoning

Order 51 Rule 10(1) bars refusal of an application merely for failure to quote the correct provision. The court held misquoting or citing non-existent provisions is excusable under Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act, which urge substantial justice over procedural technicalities. The substance of the application was clear and grounded in Order 12 Rule 7.

p. 5
02

Whether the trial magistrate violated Article 50 of the Constitution by ruling on the reinstatement application without hearing the appellant's submissions

Holding

No violation; the appellant's replying affidavit was on record and considered, and absence of submissions is not a denial of hearing.

Reasoning

There were no directions on filing submissions; Order 51 Rule 12 deems applications made on filing, and submissions merely expound positions already in the affidavits. The appellant's replying affidavit was admitted and considered. Neither party filed submissions, so no prejudice was suffered; failure to file submissions cannot amount to a violation of Article 50.

p. 6
03

Whether the trial court erred in reinstating the respondent's suit dismissed for non-attendance

Holding

The trial court exercised its discretion judiciously; reinstatement was justified as non-attendance was not deliberate and the dismissal was not on merit.

Reasoning

Order 12 Rule 7 donates a discretion to set aside dismissal on just terms. The appellant failed to demonstrate error in principle or irrelevant considerations. The respondent filed the reinstatement application the same day, explaining that he and his counsel arrived late for the hearing; this showed no deliberate attempt to obstruct justice. The suit was dismissed for non-attendance, not on merits, and reinstatement served access to justice and substantive justice.

p. 7

Legal principles established

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  • Failure to quote the correct statutory provision in an application is not fatal, as no application shall be refused for failure to correctly quote the order or rule upon which it is founded.
  • Failure by a party to file submissions does not amount to violation of the right to a fair hearing where the party's pleadings and affidavit evidence were on record and considered.
  • An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision was plainly wrong.

Court orders

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  1. 1.The appeal fails in its entirety.
  2. 2.Kakamega Chief Magistrate's Court ELRC Cause No. E012 of 2023 shall be mentioned before the DR of this court within 7 days of this judgment for the allocation of a hearing date on priority basis in view of the orders sought by the respondent including reinstatement a remedy that is time-bound.
  3. 3.The respondent shall have the costs of this appeal.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1); Article 159(2)(d); Articles 48 & 50
  • Civil Procedure ActSections 1A, 1B, 3A & 63
  • Civil Procedure Rules, 2010Order 12 Rules 6 & 7; Order 17 Rule 9 (cited by respondent in lower court); Order 51 Rule 10(1); Order 51 Rule 12

Cases cited (12)

  • Patel v E.A. Cargo Handling Services Ltd
    (1974) E.A. 75
  • Shah v Mbogo & Another
    (1967) E.A 116
  • Chris Onyancha v Francis Mburu & Another
    (2012) eKLR
  • Stanley Mungai Waweru v Keziah Wamaitha Waweru & Another
    (2019) eKLR
  • Meme v Maroo
    (2022) KEHC 15942 (KLR)
  • Mureithi Charles & Another v Jacob ATINA Nyagesuka
    (2022) eKLR
  • Martin L. Barasa v Giza Systems Smart Solutions Ltd
    (2022) eKLR
  • Selle V Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mbogo & Another V. Shah
    [1968] EA 98
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KECA 175 (KLR)
  • Carl Ronning v Societe Navale Chargeurs Delmas Vieljeux (The Francois Vieljeux)
    [1984] KLR 1
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    [2013] eKLR
On appeal from
Chief Magistrate's Court of Kenya at Kakamega
ELRC Case No. E012 of 2023
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (ELRC cause), exercised on appeal from the ruling of 8th February, 2024

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, "Teachers Service Commission v Akuyava (Appeal E001 of 2024) [2025] KEELRC 480 (KLR)", Case Analysis (2025). ELRC Appeal (Kakamega), memorandum of appeal dated 22nd February, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/480/eng@2025-02-20

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