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ELRCPartially Allowed· [2025] KEELRC 1472 (KLR)

Kenya Engineering Workers Union & another v Ideal Appliances Limited (Employment and Labour Relations Cause E268 of 2021) [2025] KEELRC 1472 (KLR)

Employment and Labour Relations Court
15 May 2025
411 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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An employment suit dismissed twice for the claimants' failure to attend court got a second chance, but only after paying the other side's wasted costs.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on the Claimants' notice of motion dated 19/8/2024 seeking a second reinstatement of their suit, which had been dismissed twice for non-attendance. The suit was first dismissed on 20/2/2023 when the Claimants, though present on the platform during call over, failed to attend the open court hearing; it was reinstated on 26/3/2023 after the first application. It was set down for hearing on 19/3/2024, both parties attended call over, and the matter was scheduled for 12:30 p.m. in open court, but the Claimants again did not attend and the suit was dismissed. The Respondent filed a replying affidavit dated 2/12/2024 opposing the second reinstatement. The court framed two issues: whether the suit was properly dismissed and should be reinstated, and whether thrown away costs should be paid. It found the Claimants' allegations that they attended court unsubstantiated, noting they did not appear in open court 5 at the scheduled times, and censured their conduct for frustrating the court's efforts. Nevertheless, the court reinstated the suit to be heard on the merits on condition that the Claimant union pays the Respondent's thrown away costs for both dismissals, at a rate to be taxed by the taxing master before the hearing. The judge also recused himself and referred the matter to the Presiding Judge, Claims Division, for allocation to another judge. The judgment is dated 15 May 2025 and is signed by Mathews Nduma, Judge.

Key legal issues

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01

Whether the suit, twice dismissed for the Claimants' non-attendance at open court hearings, should be reinstated

Holding

The suit was properly dismissed both times, but the court nonetheless reinstated it to be heard on the merits, while censuring the Claimants' conduct

Reasoning

The court found the Claimants' allegations that they were present in court unsubstantiated, since they did not appear in open court 5 at the scheduled times on 20/2/2023 and 19/3/2024. The court noted it had wasted effort trying to have the matter heard but the Claimants frustrated that effort. Despite disapproving of the Claimants' conduct, the court exercised its discretion to reinstate the suit for hearing on the merits, subject to conditions.

p. 2
02

Whether the Claimants should pay thrown away costs upon reinstatement

Holding

Yes - the Claimant union must pay the Respondent's thrown away costs for both dismissals, to be taxed by the taxing master before the suit is heard

Reasoning

The court conditioned reinstatement on payment of thrown away costs incurred by the Respondent on the two occasions the Claimants failed to attend open court hearings. The quantum is to be determined by the taxing master, and payment must precede the hearing and determination of the reinstated suit.

p. 2

Legal principles established

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  • A suit dismissed for non-attendance may be reinstated on terms, including payment of thrown away costs by the defaulting party as a condition precedent to the hearing

Court orders

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  1. 1.The suit dismissed on 20/2/2023 and again for non-attendance is reinstated to be heard on the merits
  2. 2.Reinstatement is conditional on the Claimant union meeting the thrown away costs incurred by the Respondent on the two occasions of non-attendance, at a rate to be taxed by the taxing master before the suit is heard and determined
  3. 3.The court recuses itself from the matter and refers it to the Presiding Judge, Claims Division, for allocation to a judge in that division for hearing and determination
  4. 4.The matter is referred to the Presiding Judge, Claims Division, for allocation to a Judge in that division for hearing on the merits
Jurisdiction invoked
Inherent case-management and reinstatement powers of the Employment and Labour Relations Court over its own suits; no specific constitutional or statutory provision invoked in the judgment

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, "Kenya Engineering Workers Union & another v Ideal Appliances Limited (Employment and Labour Relations Cause E268 of 2021) [2025] KEELRC 1472 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1472/eng@2025-05-15

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