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ELRCPartially AllowedNot stated in judgment (appeal against judgment in Mombasa CMELRC No. E640 of 2023)· [2025] KEELRC 803 (KLR)

Suen Real Estate Company Limited & Swaleh & Co. Advocates v Thoya (Appeal E173 of 2024) [2025] KEELRC 803 (KLR)

Employment and Labour Relations Court
6 March 2025
MMM. Mbarũ
1,477 words in judgment
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The bottom line

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Kenya's Employment Court set aside an employment judgment because the trial court decided the case while ignoring a response and application already on record.

What this practically means

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Executive summary

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This is a first-instance appeal to the Employment and Labour Relations Court at Mombasa, decided by M. Mbarũ, J, against the judgment of 15 August 2024 in Mombasa CMELRC No. E640 of 2023. The appellants contended that despite entering appearance on 9 November 2023, filing a response on 22 November 2023, and filing an application dated 6 December 2023 seeking to strike out the 2nd appellant, the trial court heard the main claim on 16 April 2024 without determining that application, and entered judgment as if the suit were undefended, contrary to Article 50 of the Constitution. The respondent argued the appellants filed but never served their appearance and response, so the claim proceeded undefended. The court found as a fact that a Memorandum of Appearance and a response were on the trial court record and that the parties had agreed the application of 6 December 2023 be heard by written submissions on 16 April 2024. The trial magistrate's finding that no appearance or response was filed was in error. Further, the trial court was obliged to first deal with the pending interlocutory application and to consider the responses on record before proceeding by formal proof; the judgment was premature. Relying on Judicial Service Commission v Mbalu Mutava and Judicial Service Commission v Shollei on fair hearing, the court allowed the appeal, set aside the judgment, and returned the matter to the trial court for hearing on the merits. However, because the appellants did not explain their absence on 16 April 2024 or the delay in filing submissions, no costs orders were made; costs will abide the outcome of the retrial, with a mention before the ELRC Deputy Registrar on 13 March 2025.

Key legal issues

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01

Denial of the right to a fair hearing

Holding

The trial court erred in proceeding to formal proof and judgment without determining the pending application dated 6 December 2023 and without considering the appearance and response on record

Reasoning

The Memorandum of Appearance (9 November 2023) and the response (22 November 2023) were on the trial court record, and the parties had agreed on 21 March 2024 that the application of 6 December 2023 be canvassed by written submissions on 16 April 2024. Proceeding as if the suit were undefended, and delivering a judgment holding no appearance or response was filed, was premature and erroneous and infringed the duty to act fairly.

p. 3
02

Effect of failure to serve appearance and response on the claimant

Holding

Even if the appellants failed to serve their pleadings on the respondent, pleadings forming part of the trial court record obliged the trial court to consider them

Reasoning

The court found that whether or not the Memorandum of Appearance and response were served, they were part of the trial court record, and the appellants' presence had been formalized through attendance on 23 November 2023 and 21 March 2024. The trial magistrate's finding that no appearance or response was filed was therefore factually in error, and the claim could not be treated as uncontested.

p. 3

Legal principles established

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  • Where responses and pleadings are on the court record, the trial court is under a duty to consider them and cannot treat the claim as undefended
  • A pending interlocutory application scheduled for determination must be dealt with before the main claim proceeds

Court orders

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  1. 1.The judgment in Mombasa CMELRC No. E640 of 2023 delivered on 15 August 2024 is set aside
  2. 2.The matter is returned to the trial court for hearing and determination on the merits
  3. 3.Costs shall abide by the outcome of the trial court hearing and determination
  4. 4.The file to be mentioned before the ELRC Deputy Registrar on 13 March 2025 for placement as appropriate
On appeal from
Employment and Labour Relations Court (trial magistrates' court, Mombasa CMELRC)
Mombasa CMELRC No. E640 of 2023
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over judgments of the subordinate ELRC registry (the judgment does not cite a specific provision)

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, "Suen Real Estate Company Limited & Swaleh & Co. Advocates v Thoya (Appeal E173 of 2024) [2025] KEELRC 803 (KLR)", Case Analysis (2025). Not stated in judgment (appeal against judgment in Mombasa CMELRC No. E640 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/803/eng@2025-03-06

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