Kenyatta National Hospital Board & another v Ruteere (Civil Appeal E233 of 2021) [2025] KECA 1461 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a default judgment against KNH, confirming you can still seek review after filing a notice of appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in holding that the filing of a notice of appeal barred the appellants from seeking review
- 2.Whether the trial court failed to exercise its discretion judiciously in declining to set aside the ex parte judgment
Key legal issues
#Whether filing a notice of appeal bars a party from seeking review
It does not; the ELRC erred in holding that the notice of appeal rendered the review application incompetent.
The ELRC had dismissed the review application on the ground that the appellants had filed a notice of appeal. The Court held this contradicts settled jurisprudence, citing Multichoice (Kenya) Ltd v Wananchi Group, that a notice of appeal is not itself an appeal and does not divest a litigant of the right to seek review of the judgment intended to be appealed against.
Whether the trial court exercised its discretion judiciously in declining to set aside the ex parte judgment
It did not; the discretion was exercised improperly and the ruling and judgment were set aside.
The Court found the ELRC failed to consider the appellants' prompt efforts to regularise their position upon learning of the judgment, including offering costs, attributed their non-attendance to excusable mistake (counsel handover confusion and Covid-19 disruptions), and failed to interrogate the draft Statement of Response showing triable issues. It also held judgment was granted on a relief (reinstatement for termination) never pleaded or amended in the absence of the appellants.
Whether the court could grant relief on a claim not pleaded
No; a court is bound by the pleadings and judgment on unamended, unpleaded relief was improper.
The claim as filed challenged interdiction; at the ex parte hearing the respondent orally shifted to claiming unlawful dismissal and reinstatement without formal amendment. Relying on IEBC v Stephen Mutinda Mule, the Court held parties and the court are bound by pleadings, and the trial court's failure to consider this vitiated its exercise of discretion.
Legal principles established
#- A notice of appeal is not a bar to filing an application for review.
- Parties and courts are bound by their pleadings; a court must determine the dispute within the pleadings, and a fresh case may not be raised without due amendment.
- In an application to set aside an ex parte judgment, the court must consider both the reasons for non-attendance and whether the applicant has a reasonable defence raising triable issues, including any draft defence annexed.
- Where a draft defence is tendered with an application to set aside a default judgment, the court is obliged to consider whether it raises a reasonable defence.
Court orders
#- 1.The ruling and order of the ELRC dated 23rd October 2020 be and is hereby set aside
- 2.The ex parte judgment dated 9th April 2020 is also hereby set aside
- 3.The appellants are granted leave to file and serve their response to the respondent's statement of claim within 14 days of the date hereof
- 4.The matter is remitted to the ELRC for hearing and determination before a judge other than Ongaya, J
- 5.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (ELRC)
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC under Article 164(3) of the Constitution (inferred; the judgment does not expressly state the provision)
Relief refused
#Respondent's alternative prayer for release of Kshs. 3.5 million deposited as security for costs to be applied to his claim
The Court held the prayer had no foundation
Costs
Each party shall bear its own costs of the appeal.
Quotable passages
#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 ruling and order of the ELRC dated 23rd October 2020 be and is hereby set aside;
The ex parte judgment dated 9th April 2020 is also hereby set aside;
The matter is hereby remitted to the ELRC for hearing and determination before a judge other than Ongaya, J;
Each party shall bear its own costs of the appeal.
Where a draft defence is tendered with the application to set aside the default judgment, the Court is obliged to consider it to see if it raises a reasonable defence to the plaintifi's claim.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyatta National Hospital Board & another v Ruteere (Civil Appeal E233 of 2021) [2025] KECA 1461 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 20th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1461/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.