Board of Management St Monica's Girls High School & Another v David Mogeni Angwenyi

from employment. compensation He for sought, alleged among other constructive reliefs, dismissal. Contemporaneously with the claim, the Respondent filed a Notice of Motion seeking, inter alia, conservatory orders restraining the Appellants from advertising, shortlisting, interviewing, recruiting, replacing or filling his position. He also sought the suspension of the letter dated 23 rd September 2024 by which he had been suspended and his reinstatement to the position of Finance Officer of the 1 st Appellant. Upon satisfying itself that the Appellants had been duly served, the trial court allowed the application. 3. Subsequently, the Respondent filed a Notice of Motion dated 17th March 2025 seeking the following orders: i. That the application be certified urgent and heard ex parte in the first instance. ii. That, pending the hearing and determination of the application, the court be pleased to suspend, strike out and/or vacate the letter of termination issued by the Appellants on 7th March 2025 and unconditionally 2 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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reinstate the Respondent to his position as Finance Officer of the 1st Appellant. iii. That, pending the hearing and determination of the application and the suit, the court be pleased to suspend, strike out and/or vacate the letter of termination issued by the Appellants on 7 th March 2025 and unconditionally reinstate the Respondent to his position as Finance Officer of the 1st Appellant. iv. That summons be issued to Elizabeth Buchichi, the principal of the 1st Appellant and secretary to the 2nd Appellant, and Henry Juma Odonya, the chairperson of the 2nd Appellant. v. That Elizabeth Buchichi and Henry Juma Odonya be committed to civil jail for a period of six months for disobeying the court orders. vi. That the Officer Commanding Station, Kitale Police Station, be directed to produce Elizabeth Buchichi and Henry Juma Odonya before the court should they fail to honour the summons. 3 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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vii. That the costs of the application and any antecedent costs incurred in executing the orders issued pursuant thereto be borne personally by Elizabeth Buchichi and Henry Juma Odonya. viii. That the court grant any other orders it deemed appropriate in the circumstances. 4. On 3rd April 2025, the trial court delivered its ruling allowing the application in terms of prayers (ii), (iv) and (vi). The court further ordered that the costs of the application and any antecedent costs incurred in executing the resultant orders be borne personally by Elizabeth Buchichi and Henry Juma Odonya. 5. Aggrieved by those orders, the Appellants filed a Notice of Motion dated 12th May 2025 seeking the following orders: i. That the application be certified urgent and service thereof be dispensed with in the first instance. ii. That there be a stay of execution of the ruling and orders issued on 8th April 2025, together with any further execution proceedings, pending the inter partes hearing and determination of the application. 4 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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iii. That, pending the inter partes hearing and determination of the application, the court be pleased to set aside, vary and/or review the orders issued on 8 th April 2025 and 6th February 2025 iv. In the alternative, that the court be pleased to set aside, vary and/or discharge the ex parte proceedings and orders issued on 6th February 2025. v. 6. That the costs of the application be provided for. On 3rd June 2025, the Appellants filed another Notice of Motion seeking the following orders: i. That the application be certified urgent and service thereof be dispensed with in the first instance ii. That there be a stay of execution and/or implementation of the arrest orders issued on 8 th April 2025, together with any further execution proceedings, pending the hearing and determination of the application dated 12th May 2025 iii. In the alternative, that Elizabeth Buchichi and Henry Juma Odonya be released on personal bond and directed to appear before the court on 12th June 2025 5 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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iv. 7. That the costs of the application be provided for. In its ruling delivered on 28th August 2025, the trial court dismissed the Appellants’ application dated 12 th May 2025. The court expressed itself as follows: “Are there sufficient grounds to warrant this Court to exercise its discretion and proceed to set aside, vary or discharge the ex parte proceedings and orders issued on 6/2/2025? I find, for the reasons and issues highlighted above, the answer to this to be no, considering that the Respondents have acknowledged knowledge of the hearing date that gave rise to the proceedings and order issued on 6/2/2025. The Applicants contend that the State Law Office, Kitale, failed to take up the matter on their behalf. The parties are reminded that the case was between the Claimant and the Respondents. The Respondents had a duty to attend Court on 6/2/2025 when the application dated 22/1/2025, which had been served upon them, was coming up for hearing. It was not only enough for them to purport to instruct a state counsel from the office of the Honourable Attorney General 6 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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and not make effort to attend the Court being the first time the Cause was coming up for hearing in Court. It is also worth noting that I have pronounced myself that Kitale CMCC No. E440 of 2024 did not inform the decision of the Court made on 6/2/2025. Accordingly, the order of 6/2/2025 cannot be said to have been overtaken by events.” 8. It is that ruling which forms the subject of the present appeal. 9. In the Memorandum of Appeal dated 18 th September 2025, the Appellants raises the following grounds of appeal: a) THAT the learned trial magistrate erred in law and fact in failing to appreciate that the Appellants had laid sufficient grounds to warrant the setting aside and/or variation of the ex parte orders of 6 th February 2025 and 8th April 2025. b) The learned magistrate erred in law in holding that the Appellants were duly served and had knowledge of the hearing date of the application dated 22 nd January 2025 without properly considering the confusion arising from representation by the Kitale State Law Office. 7 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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c) The learned magistrate erred in failing to consider that the Respondent had obtained the ex parte orders irregularly, despite the Appellants' challenges with legal representation and the existence of other proceedings in Kitale CMCC E440 of 2024 and Kitale HCCA EO01 of 2025. d) The learned magistrate erred in law and in fact by disregarding the Appellants contention that enforcement of the reinstatement orders would occasion hardship, confusion, and prejudice to the administration of the 1st Appellant's institution. e) The learned magistrate erred in failing to exercise her judicial discretion judiciously in favour of granting the Appellants an opportunity to be heard. contrary to the principles of natural justice and Article 50 of the Constitution. f) The ruling was against the weight of evidence and submissions presented by the Appellants. g) The learned Magistrate erred in finding that the 1 st Respondent established prima facie that the 1st 8 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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Respondent is a critical stakeholder in the Appellants institution. h) The learned Magistrate erred law and fact in failing to find that the balance of convenience tilted in favour of the public interest over the operations of the school as opposed to 1* respondent's personal interests. i) THAT consequently the Learned Magistrate's decision occasioned a miscarriage of justice. 10. The Appellant therefore prayed that: i. This appeal be allowed. ii. The Ruling and Order of the Chief Magistrate's Court at Kitale MELRC No. EO02 of 2025 by Hon. Mary A. Ochieng Senior Principal Magistrate dated and delivered on 28th August 2025 be set aside and instead be substituted with an order allowing the Application. iii. The Appellants' application dated 12 th May 2025 be allowed as prayed. iv. The costs of this appeal and the Appellants' application dated 12th May 2025 be in the cause. 9 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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11. Pursuant to the directions of this court issued on 25 th February 2026, the Appeal be disposed of by way of written submissions. The Appellants submissions were filed on 21st July 2026 while Respondent’s submissions are dated 20th July 2026. The Appellants’ submissions 12. In their submissions, the Appellants contend that the trial court ought to have set aside and/or varied the ex parte orders on the grounds that, at the time the impugned orders were issued, there was a subsisting order in Kitale CMCC No. E440 of 2024 barring the Appellants from entering the school or conducting any business or meetings relating to it; the impugned orders had been overtaken by events; neither the Office of the Attorney General nor the Appellants had been duly served with the pleadings; and the orders issued on 6 th February 2025 did not, in any event, bar the school from conducting a disciplinary meeting. 13. They contend that the orders issued in Kitale CMCC No. E440 of 2024 prevented the 2nd Appellant from holding any meeting, 10 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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including initiating the disciplinary process against the Respondent following his suspension. The Appellants aver that the orders were subsequently varied to permit the principal to access the school and manage its day-to-day operations. 14. It is the Appellants’ submissions that at the beginning of the school year, it became necessary to have an officer responsible for the school’s finances and that since the Board could not take any action concerning the Respondent, the principal had no option but to recruit a temporary accounts clerk on 20 th January 2025 in exercise of her mandate to oversee the school’s day-to-day operations. 15. The Appellants aver that by the time the Respondent obtained interim orders restraining the Appellants from replacing him or commencing any process towards his replacement, those orders had already been overtaken by events. The Appellants submit that the reinstatement orders issued on 6 th February 2025 suffered the same fate as a reading of the ruling reveals that, when the trial court issued the orders of 6 th February 2025, it was unaware of the existence of Kitale CMCC No. E440 of 2024 and the ruling delivered therein. 11 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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16. It is the Appellants’ submission that, once the trial court was informed of those proceedings through the application for review, it ought to have granted the orders sought which would have afforded the court an opportunity to consider the ruling in Kitale CMCC No. E440 of 2024 and assess it against the practical implications of enforcing its own orders. That instead, the trial court concluded that the proceedings in Kitale CMCC No. E440 of 2024 had no bearing on its decision. 17. The Appellants argue that the injunction order issued in those proceedings was binding in its effect and affected the Respondent notwithstanding that he was not a party to the suit. 18. The Appellants further contend that the trial court also held that its orders had not been overtaken by events merely because they had not been informed by Kitale CMCC No. E440 of 2024. According to the Appellant, in arriving at that conclusion, the trial court disregarded the Appellants’ contention that the orders had already been overtaken by events because the Respondent’s position had been filled and was, therefore, no longer available for purposes of 12 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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reinstatement. Relying on the decision in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] KECA 403 (KLR), the Appellants submitted that before issuing an order of reinstatement, a court is required to consider the employer’s circumstances and the practical implications that such an order may have upon the employer. 19. It is contended that the learned Magistrate, having been seized of an application for review premised partly on the lack of effective service upon the Appellants, ought to have granted the orders sought as doing so would have enabled the court to consider the Appellants’ defence and determine whether, in light of that defence, reinstatement was an appropriate and practicable remedy. 20. The Appellants assert that they informed the trial court of the challenges they had encountered in securing legal representation owing to the technical and operational complexities arising from the devolution of the Office of the Attorney General. 13 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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21. They submit that, pursuant to Article 156 of the Constitution, it was the mandate of the Attorney General to represent the 2 nd Appellant, a public institution. Accordingly, when the principal was served with the application dated 22nd January 2025 and the resultant orders, she forwarded them to the Attorney General’s Kitale Office with instructions to apply to have the orders set aside, as they had already been overtaken by events. 22. It is the Appellants’ submission that unknown to the principal, however, the Attorney General’s Kitale Office was not fully operational and that although she reasonably believed that the matter had been taken up and was being addressed, her instructions were not acted upon, and the school was not informed of that fact. 23. The Appellants further submit that they were not personally served with any subsequent pleadings, submissions, or other documents relating to the suit. They maintain that they therefore had no reason to believe that the instructions forwarded to the Attorney General’s Office were not acted upon. 14 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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24. In addition, the Appellants submit that, pursuant to Order 9 of the Civil Procedure Rules, a party who is represented by an advocate need not appear in person unless the court directs otherwise. It was therefore submitted that it was a miscarriage of justice for the trial court to fault the Appellants for their non-attendance without properly considering the question of their legal representation and the circumstances surrounding it. That further, the trial court, through the orders issued on 8th April 2025, found the principal and the former chairperson of the Appellant to be in contempt of court and issued a notice to show cause why they should not be committed to civil jail. The Appellants contend that these orders were issued despite the Respondent’s failure, in the absence of personal service, to establish beyond reasonable doubt that the former chairperson had knowledge of the court orders. 25. The Appellants further submit that the orders were issued notwithstanding the Respondent’s failure to comply with the prescribed procedure for executing orders against public institutions under the Government Proceedings Act in 15 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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particular, the procedure contemplated under sections 21(1) and (2) of the Act which requires a certificate of order against the Government to be obtained. 26. Consequently, the Appellants submit that they established more than sufficient grounds to warrant the grant of the orders sought. The Respondent’s submissions 27. In his submissions, the Respondent framed the issues for determination to be: i. Whether this Honourable Court should interfere with the discretionary decision of the learned trial Magistrate. ii. Whether the Appellants established sufficient cause to warrant setting aside the orders issued on 6th February 2025. iii. Whether the alleged confusion regarding legal representation constituted a sufficient legal ground for setting aside the orders. iv. Whether the Appellants' right to be heard under Article 50 of the Constitution was violated. 16 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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v. Whether the Appellants, while remaining in contempt of subsisting court orders, are entitled to equitable relief. vi. 28. Whether the appeal should be dismissed with costs. In his submissions, the Respondent submitted that the decision whether to set aside an ex parte order is discretionary and that such discretion must be exercised judiciously and in accordance with settled principles of law. Relying on Mbogo & Another v Shah [1968] EA 93, the Respondent submitted that an appellate court should not interfere with the exercise of judicial discretion unless it is established that the court below misdirected itself in law, misapprehended the facts, considered irrelevant matters, failed to consider relevant matters, or arrived at a plainly wrong decision that occasioned an injustice. 29. The Respondent further relied on the decision in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898 for the proposition that an appellate court should exercise restraint before interfering with a discretionary order. He contended that the Appellants had failed to establish any basis for such interference and were 17 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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merely inviting this Court to substitute its discretion for that of the learned trial Magistrate. 30. According to the Respondent, the record demonstrated that the learned trial Magistrate considered the affidavits of service, the chronology of events, the conduct of the parties, the explanation offered for the Appellants’ non-attendance, their conduct after the orders were issued and the interests of justice. The trial court thereafter concluded that no sufficient cause had been established to warrant setting aside the orders. The Respondent maintained that this was a proper exercise of judicial discretion. 31. On whether sufficient cause had been established, the Respondent submitted that ex parte orders are not set aside merely because a party desires another opportunity to litigate. He relied on Patel v East African Cargo Handling Services Ltd [1974] EA 75, where the Court held that the discretion to set aside is intended to prevent injustice or hardship arising from accident, inadvertence or excusable mistake, but not to assist a party who deliberately sought, by evasion or otherwise, to obstruct or delay the course of justice. 18 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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32. The Respondent contended that the Appellants were duly served with the application, the hearing notice and the resultant orders but failed to attend court or file any response. He further contended that, after the orders were issued, the Appellants failed to reinstate him, proceeded with disciplinary proceedings and ultimately terminated his employment while the reinstatement order remained in force. 33. It was the Respondent’s submission that the Appellants’ conduct disentitled them from discretionary relief. With regard to the alleged confusion over legal representation, the Respondent submitted that Grounds Two and Three of the Memorandum of Appeal attributed the Appellants’ failure to attend court to uncertainty concerning their legal representation and the existence of another matter before the Civil Court. He argued that neither explanation constituted sufficient cause. 34. The Respondent maintained that parties bear responsibility for the advocates they appoint and that the negligence, omission or administrative shortcomings of counsel do not automatically entitle a litigant to have proceedings reopened. 19 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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35. He further submitted that no evidence was placed before the trial court or this Court demonstrating when the alleged confusion arose, which advocate had ceased acting, whether a notice of change of advocates had been filed, whether any advocate had sought an adjournment or attempted to communicate with the court, or whether an explanation had been tendered immediately after the hearing. He therefore maintained that the allegation was a bare assertion unsupported by evidence. In support of that position, the Respondent relied on Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR. The Respondent also cited Savings and Loan (K) Ltd v Susan Wanjiru Muritu, Nairobi HCCC No. 397 of 2002, for the proposition that the discretion to set aside should not be exercised where an applicant’s conduct demonstrates indifference to the court process. 36. The Respondent disputed the contention that the learned trial Magistrate failed to consider material circumstances. He submitted that the impugned ruling addressed service of the pleadings and hearing notices, the affidavits of service, the 20 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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parties’ conduct following service, the Appellants’ failure to comply with the reinstatement order, the subsequent termination of his employment, the chronology of events and the interests of justice. 37. He further argued that it was the Appellants who sought to have the Court disregard material facts, including their alleged failure to comply with the reinstatement order, their continuation of the disciplinary proceedings, the issuance of a termination letter while the court order remained in force, the commencement of contempt proceedings against the principal and the chairperson of the Board, and their failure to purge the alleged contempt before seeking equitable relief. 38. On the alleged violation of Article 50 of the Constitution, the Respondent submitted that, although every person is entitled to a fair hearing, that right does not permit a party to disregard court proceedings after being afforded an opportunity to participate. He reiterated that the Appellants had been served with the application, hearing notice and interim orders but neither attended court, sought an adjournment nor filed a response. 21 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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39. The Respondent relied on Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR for the proposition that, although the right to be heard is fundamental, a litigant who is afforded an opportunity to be heard but elects not to utilise it cannot invoke Article 50 to invalidate proceedings properly conducted. 40. He further averred that Article 159 of the Constitution obliges parties to facilitate, rather than obstruct, the administration of justice. It was therefore his position that the learned trial Magistrate did not violate the Appellants’ right to a fair hearing. 41. On whether the Appellants were entitled to equitable relief while allegedly in contempt, the Respondent submitted that, after being served with the orders issued on 6 th February 2025, the Appellants deliberately failed to comply with them. He alleged that they refused to permit him to resume duty, invited him to a disciplinary hearing notwithstanding that his suspension had been stayed, proceeded with disciplinary proceedings founded on that suspension and terminated his employment on 7th March 2025 while the reinstatement orders remained in force. 22 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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42. The Respondent contended that the trial court subsequently issued notices requiring the principal and the chairperson of the Board to show cause why contempt proceedings should not be commenced against them. He argued that, instead of purging the alleged contempt, the Appellants sought equitable relief from the same court whose orders they had allegedly disobeyed. 43. Relying on Hadkinson v Hadkinson [1952] P 285 and Econet Wireless Kenya Ltd v Minister for Information & Communication & Another [2005] eKLR, the Respondent submitted that an order made by a court of competent jurisdiction remains binding and must be obeyed unless and until it is discharged. 44. The Respondent further cited Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR for the proposition that obedience of court orders is a constitutional imperative flowing from the rule of law under Article 10 of the Constitution. In further support of that argument, the Respondent relied on Samuel M.N. Mweru & Others v National Land Commission & 2 Others [2020] 23 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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eKLR, in which the Court discussed the role of contempt jurisdiction in preserving the authority of the Judiciary, public confidence in the courts, the orderly administration of justice and the rule of law. He also cited Wildlife Lodges Ltd v County Council of Narok & Another [2005] 2 EA 344 for the proposition that a party who consciously disobeys a court order should not expect the court to exercise its discretion in that party’s favour before the contempt is purged. 45. In response to the Appellants’ contention that compliance with the reinstatement orders would have occasioned hardship, the Respondent submitted that hardship does not justify disobedience of a court order. He maintained that the Appellants could have sought review, variation, an appeal or a stay pending appeal instead of unilateral non-compliance. The Respondent relied on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR. 46. Regarding the balance of convenience, the Respondent submitted that he remained the substantive holder of the office of Finance Officer when the interim orders were issued. He contended that no lawful disciplinary hearing had been 24 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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concluded, replacement no valid had termination lawfully been had occurred appointed. He and no therefore maintained that he continued to enjoy statutory protection under the Employment Act. 47. Citing Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Respondent argued that the purpose of the interlocutory orders was to preserve the status quo and the subject matter of the dispute pending its determination. According to him, setting aside the orders would have enabled the Appellants to fill his position permanently and thereby render the suit nugatory, whereas maintaining the orders merely preserved the employment relationship pending the hearing of the dispute. He therefore maintained that the balance of convenience favoured him. 48. On the Appellants’ reliance on Kitale CMCC No. E440 of 2024 and Kitale HCCA No. E001 of 2024, the Respondent submitted that those proceedings involved different parties, causes of action and legal issues. He contended that his claim arose from his contract of employment, the Employment Act, his alleged unlawful suspension and attempted replacement, the order for 25 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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his reinstatement and the alleged violation of his employment rights. 49. The Respondent further submitted that neither the proceedings before the Civil Court nor those before the High Court displaced or suspended the orders issued in Kitale MCELRC No. E002 of 2025 by the court vested with jurisdiction over employment disputes under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. He therefore maintained that the Appellants had no lawful basis for disregarding those orders. 50. The Respondent argued that the grounds of appeal did not disclose any error of law or fact warranting appellate interference. In his view, the learned trial Magistrate properly evaluated the affidavits filed by the parties, considered the chronology of events and the explanation offered for the Appellants’ non-attendance, examined their subsequent conduct, applied the relevant principles governing the setting aside of ex parte orders and reached a conclusion supported by the evidence and the law. 26 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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51. He maintained that the appeal was an attempt to sanitise the Appellants’ conduct after they allegedly suspended him, failed to conclude the disciplinary process, advertised his position while he remained in employment, ignored the interim and reinstatement orders, continued with the disciplinary process after his suspension had been stayed, terminated his employment while the reinstatement orders remained in force and failed to purge the alleged contempt. 52. The Respondent further submitted that his claim before the trial court was founded on Articles 41, 47, 48 and 50 of the Constitution and sections 41, 43 and 45 of the Employment Act. He contended that he had responded to the show-cause letter, that no disciplinary hearing had lawfully been concluded and that no valid decision terminating his employment had been reached when the interim orders were issued. He submitted that interim orders were intended to preserve, rather than determine, the parties’ rights pending the hearing of the suit. The Respondent relied on Board of Governors, Moi High School Kabarak & Another v Malcolm Bell [2013] eKLR and Teachers Service Commission v Kenya 27 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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National Union of Teachers & 2 Others [2013] eKLR to emphasise that the rule of law requires obedience of court orders by all persons, regardless of their status or position. 53. The Respondent consequently urged the Court to find that the Appellants had not established any basis for interfering with the learned trial Magistrate’s exercise of discretion. He prayed that the appeal be dismissed with costs and that the ruling and orders delivered in Kitale MCELRC No. E002 of 2025 on 28 th August 2025 be upheld. Analysis and Determination 54. This being a first appeal, I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123. 55. Having considered the grounds of appeal, the parties’ submissions and the record of the trial court, I find that the sole issue for determination is whether the learned trial Magistrate erred in dismissing the Appellants’ application dated 12 th May 28 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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2025, which sought the setting aside, variation and/or review of the ex parte orders issued on 6 th February 2025 and 8th April 2025. 56. The power to set aside an ex parte order is discretionary. Accordingly, an appellate court will not ordinarily interfere with the exercise of that discretion unless it is demonstrated that the trial court misdirected itself on the law, misapprehended the facts, considered irrelevant matters, failed to consider relevant matters, or reached a plainly erroneous decision resulting in injustice. 57. In Mbogo & Another v Shah [1968] EA 93, the Court held that an appellate court should not interfere with the exercise of judicial discretion unless it is satisfied that the court below misdirected itself in some matter and, as a result, arrived at a wrong decision, or that it is manifest from the case as a whole that the court was clearly wrong in the exercise of its discretion and thereby occasioned an injustice. 58. The question, therefore, is whether the learned trial Magistrate exercised her discretion on sound legal principles and upon a proper consideration of the material placed before her. 29 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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59. The principles governing the setting aside of ex parte proceedings are well settled. The court’s primary concern is to do justice between the parties and to avoid injustice or hardship arising from accident, inadvertence or excusable mistake. The discretion is, however, not intended to assist a party who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice as held in the case of Patel v East African Cargo Handling Services Ltd [1974] EA 75 and Shah v Mbogo [1967] EA 116. 60. In the present case, it is not disputed that the principal of the 1st Appellant was served with the application dated 22 nd January 2025 and the resultant orders. The Appellants’ explanation was that the documents were forwarded to the Office of the Attorney General in Kitale with instructions to act on their behalf. They asserted that the principal reasonably believed that the matter had been taken up, only to discover subsequently that the Kitale Office was not fully operational and that the instructions had not been acted upon. 61. The learned trial Magistrate rejected that explanation on the basis that the Appellants were aware of the hearing date and 30 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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had an independent duty to attend court. The material before the trial court showed that the principal did not simply disregard the proceedings. Upon being served, she forwarded the documents to the Office of the Attorney General, which was constitutionally mandated to represent the national Government and public institutions falling within its remit. Her explanation was that she believed counsel would take the necessary steps on behalf of the Appellants. Although the principal ought to have followed up on the instructions, I am not persuaded that her failure to do so demonstrated a deliberate intention to obstruct or delay the course of justice. 62. In my view, the failure by the Office of the Attorney General to act upon the instructions constituted an excusable lapse in legal representation. The learned trial Magistrate placed undue emphasis on the Appellants’ failure to attend court personally without sufficiently considering whether their explanation was reasonable or whether the resulting prejudice could be remedied by costs. In the circumstances, the interests of justice favoured granting the Appellants an opportunity to be heard on the merits. 31 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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63. The trial court was further informed of the existence of orders issued in Kitale CMCC No. E440 of 2024, which allegedly restrained the Appellants from entering the school or conducting meetings and other business relating to it. Although the Respondent was not a party to those proceedings, the existence and effect of those orders were relevant to the Appellants’ explanation for their inability to undertake the disciplinary process and to comply with the reinstatement orders. 64. The learned trial Magistrate held that the proceedings in Kitale CMCC No. E440 of 2024 had not informed the orders issued on 6th February 2025 and that those orders could not, therefore, be said to have been overtaken by events. In my view, the relevant question was not whether the earlier proceedings had informed the court’s decision, but whether their existence and practical effect constituted material circumstances warranting reconsideration of the ex parte orders. 65. The Appellants also asserted that a temporary accounts clerk had been appointed on 20th January 2025, before the Respondent filed his application on 22 nd January 2025. Whether 32 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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that appointment rendered reinstatement impracticable was a contested question that could only be properly determined after hearing both parties. It was therefore a material consideration which the trial court ought to have taken into account when determining whether to set aside the ex parte orders. 66. In addition, the orders issued on 6 th February 2025 were not merely preservatory. They required the Respondent’s reinstatement and therefore compelled the Appellants to take positive action before the dispute had been heard on its merits. Such an order was, in substance, a mandatory interlocutory order whose practical consequences required careful consideration. 67. In Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] KECA 403 (KLR), the Court of Appeal observed that reinstatement is a discretionary remedy and that, in determining whether to grant it, the court must consider the factors prescribed under section 49(4) of the Employment Act, including the practicability of reinstatement and the common-law principle that specific performance of a 33 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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contract of employment and should only be ordered in exceptional circumstances. 68. Although the trial court was not determining the claim finally, the mandatory nature of the reinstatement order, the alleged appointment of a temporary accounts clerk and the existence of the orders in Kitale CMCC No. E440 of 2024 were material matters which ought to have been evaluated after hearing the Appellants. Declining to set aside the ex parte orders effectively denied the court an opportunity to consider those matters inter partes. 69. The Respondent argued that the Appellants were not entitled to discretionary relief because they remained in contempt of the subsisting orders. It is, however, apparent from the record that the trial court issued notices requiring the principal and the chairperson of the Board to show cause why contempt proceedings should not be commenced against them. The issuance of a notice to show cause did not, by itself, amount to a final finding that they were guilty of contempt. 70. Contempt proceedings are quasi-criminal in nature, and liability must be established to the requisite standard after the alleged 34 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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contemnors have been afforded an opportunity to respond. It would therefore be prejudicial to treat the allegation of disobedience as conclusively established before the notices to show cause had been heard and determined. 71. In determining an application to set aside ex parte proceedings, the court must also consider whether the applicant has disclosed an arguable defence deserving consideration on its merits. At that stage, the court is not required to determine whether the proposed defence will ultimately succeed; it is sufficient that the defence raises bona fide issues warranting adjudication. 72. The Appellants raised questions concerning the effect of the orders issued appointment in of Kitale a CMCC temporary No. E440 accounts of 2024, the clerk before the Respondent commenced the proceedings, the practicability of reinstatement, the adequacy of service upon the relevant officers and the procedure adopted in commencing the contempt proceedings. These were not frivolous matters and could not be conclusively determined without hearing both parties. 35 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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73. While the Respondent was entitled to the expeditious determination of his claim, that interest had to be balanced against the Appellants’ right to be heard. Any prejudice occasioned to the Respondent by reopening the proceedings could have been addressed through an appropriate award of costs and directions for the expeditious hearing of the application. On the other hand, denying the Appellants an opportunity to present their case exposed them to substantive and coercive orders issued without their participation. 74. Taking all the foregoing matters into account, I find that the learned trial Magistrate did not adequately consider the explanation offered by the Appellants for their non-attendance, the nature and effect of the ex parte orders, the arguable issues raised in their proposed response and the prejudice likely to arise from denying them an opportunity to be heard. 75. In the circumstances of this case, the interests of justice required that the dispute be determined on its merits. I therefore find that the learned trial Magistrate erred in exercising her discretion on the basis of the material 36 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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circumstances and therefore, this Court is entitled to interfere with that exercise of discretion. 76. Consequently, the appeal is meritorious and is allowed in the following terms: i. The ruling and orders delivered on 28 th August 2025 in Kitale CMELRC No. E002 of 2025 are hereby set aside. ii. The Appellants’ application dated 12th May 2025 is allowed. iii. The ex parte proceedings and orders issued on 6 th February 2025 and 8th April 2025 are hereby set aside. iv. In view of the events that led to the instant judgment, the parties will proceed to the hearing of the main suit in Kitale CMELRC No. E002 of 2025 on priority basis before a magistrate other than the magistrate who previously handled this matter. v. Each party shall bear its costs of the appeal and all the applications filed in Kitale CMELRC No. E002 of 2025. 77. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON 37 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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THIS 24th DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE 38 KTL ELRCA NO. E003 OF 2025 JUDGMENT

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