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Court of AppealDismissedNot stated in the judgment

Kithunzi v Kenya Airways Limited (Civil Appeal 432 of 2019) [2025] KECA 580 (KLR)

Court of Appeal of Kenya
28 March 2025
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a worker's case against Kenya Airways stayed dismissed because he missed strict court deadlines — litigants must follow court orders promptly.

What this practically means

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Executive summary

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This is a first appeal from an order of Radido, J of the Employment and Labour Relations Court made on 25th October 2018, declaring the appellant's suit automatically dismissed for breach of the 'self-exacting' conditions in Sergon J's orders of 10th October 2017. Those conditions required the appellant to pay witness expenses of Kshs.5,000 within 14 days, pay court adjournment fees, and file and serve witness statements within 21 days, failing which the suit would stand dismissed with no further reference to the court. The appellant conceded that the adjournment fees were paid late, arguing that the lapse was not inordinate and that justice should be administered without undue regard to technicalities, invoking Article 159 of the Constitution and authorities on the mistakes of counsel. The respondent countered that the suit had been pending unheard for some 18 years with demonstrated lethargy, including a seven-year failure to file witness statements. The Court of Appeal held that the foundational order was self-executing and had neither been appealed, reviewed nor set aside, and that the trial judge merely endorsed what had automatically happened upon breach. Applying the established test for appellate interference with discretion, the Court found the discretion judiciously exercised. It affirmed that the right to be heard is not absolute and must be exercised responsibly. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court judiciously exercised its discretion in declaring the suit automatically dismissed for breach of the self-executing orders of 10th October 2017
  2. 2.Whether the appellant's late compliance with the conditions in the order of 10th October 2017 excused the automatic dismissal
  3. 3.Whether a litigant should be condemned for the mistake or lapse of counsel

Key legal issues

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01

Effect of breach of a self-executing dismissal order

Holding

Once the conditions of a self-executing order are breached, the suit stands automatically dismissed and the trial judge merely endorses the automatic consequence

Reasoning

The foundational order of Sergon J of 10th October 2017 was clear and unappealed, unreviewed and not set aside. It provided that in default of payment of witness expenses, adjournment fees and filing of witness statements, the suit would stand dismissed with no further reference to the court. The appellant conceded late payment and did not seek an extension of time, so the judge of 25th October 2018 simply endorsed what had automatically occurred.

p. 3
02

Appellate interference with discretionary decisions

Holding

An appellate court interferes with a trial judge's discretion only where the judge misapprehended the facts, considered irrelevant matters, failed to consider relevant matters, or reached a plainly wrong decision

Reasoning

This being a first appeal against a discretionary dismissal order, the Court's task was to examine whether the discretion was exercised judiciously on the material before the trial court. Given the suit's 18-year pendency, seven years' failure to file witness statements and conceded late payment, the Court found no misapprehension or error in the exercise of discretion.

p. 3
03

The qualified nature of the right to be heard

Holding

The right to a fair hearing is not absolute and must be exercised responsibly, without oppression of the other side; a party given a reasonable opportunity to be heard but who does not use it cannot complain

Reasoning

The Court adopted the Union Insurance principle that once a reasonable opportunity to be heard is given and not utilised, the party can only be heard on why it did not utilise the opportunity. The appellant had been accorded opportunities over many years, did not seek review or setting aside of Sergon J's orders, and demonstrated lethargy, so dismissal did not infringe the right to a fair hearing.

p. 3

Legal principles established

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  • Where an order is self-executing, the suit stands automatically dismissed upon breach of its conditions, and the judge merely endorses what has automatically happened
  • An appellate court will only interfere with a trial court's exercise of discretion if the trial court misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong
  • The right to be heard is not absolute; it must be exercised responsibly and is dependent on a party's willingness to prosecute the suit in accordance with procedures and directions

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appeal under the Employment and Labour Relations Court Act (section 20(1) referenced in submissions); no specific appellate provision is cited in the judgment

Relief refused

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Setting aside the order of 25th October 2018 declaring the suit dismissed

The order of Sergon J was self-executing and was neither appealed, reviewed nor set aside; the appellant's breach was conceded and there was demonstrable lethargy in prosecuting the suit

p. 3

Costs

The appeal was dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal is without merit and is hereby dismissed with costs.
p. 3Final orders - dismissal of the appeal
As framed, the order meant that the suit would stand automatically dismissed if any of the three conditions were breached.
p. 3Self-executing orders
We agree with counsel for the appellant that the right to be heard is not absolute. The right is not inflexible. It must be exercised in a responsible manner that is not oppressive to the other side.
p. 3Qualified right to be heard
Further, it cannot be said that the trial judge did not exercise that discretion judiciously when the suit had been pending unheard for 18 years and there was demonstrable lethargy on the part of the appellant in prosecuting his own suit.
p. 3Judicious exercise of discretion and litigant lethargy

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kithunzi v Kenya Airways Limited (Civil Appeal 432 of 2019) [2025] KECA 580 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/580/eng@2025-03-28

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