Middle East Bank Kenya Limited v Ngunjiri (Civil Appeal E019 of 2023) [2026] KECA 238 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a suit dismissed for missing a hearing can be revived, because such dismissal is not a final judgment.
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 had jurisdiction to hear and determine the respondent's Motion, the appellant contending the trial court had become functus officio upon dismissing the suit for non-attendance
- 2.Whether the learned Judge had discretionary power to grant the orders sought, including reinstating the respondent's suit dismissed for non-attendance for hearing and determination on its merits
Key legal issues
#Whether the ELRC became functus officio upon dismissing the respondent's suit for non-attendance
The court held that functus officio did not apply because the dismissal for non-attendance was a procedural outcome, not a determination on the merits; the decision was neither substantively nor formally final, as no final judgment or order had been drawn up, issued and entered disposing of the claim.
Adopting the Pretorius formulation approved by the Supreme Court in Raila Odinga and Wong's two aspects of finality (substantive and formal), the court reasoned that the suit was dismissed only for a procedural infraction - a technical hitch in joining the virtual platform - and was never determined on its merits. Had it been so determined, the doctrine would have applied. The contention was therefore misconceived.
Whether section 12(3)(viii) of the Employment and Labour Relations Act confers power on the ELRC to set aside a dismissal order, or must be construed ejusdem generis with the preceding subsections
The court held that section 12(3)(viii) is intentionally broad, conferring wide discretionary powers to grant 'appropriate relief', which, read with Articles 48 and 50 of the Constitution and Article 159(2)(d), encompasses setting aside dismissal orders without undue regard to procedural technicalities. The ejusdem generis argument was rejected.
Relying on Fose v Minister of Safety & Security on 'appropriate relief', the court linked that relief to the constitutional rights of access to justice and fair hearing. Article 159(2)(d) mandates administration of justice without undue regard to procedural technicalities. Section 12 as so read provides a firm foundation for the trial court's discretion to reinstate the dismissed suit.
Whether the Court of Appeal should interfere with the learned Judge's discretionary decision to set aside the dismissal order
The court found no misdirection in law, misapprehension of facts, or wrong exercise of discretion, and declined to interfere with the trial court's decision, applying the classic principles in United India Insurance v East African Underwriters.
The court applied the five-limbed test from United India Insurance (Madan, JA) on interference with discretionary decisions. It found nothing to suggest the learned Judge erred on any limb: she did not misdirect herself in law, misapprehend the facts, take irrelevant considerations into account, omit relevant ones, or arrive at a plainly wrong decision.
Legal principles established
#- The functus officio doctrine does not bar a court from reinstating a suit dismissed for a procedural infraction such as non-attendance, since such a dismissal is not a final decision on the merits; the doctrine applies only where a final and valid decision has been made and a formal judgment or order drawn up, issued and entered.
- Section 12(3)(viii) of the Employment and Labour Relations Act, which empowers the ELRC to grant 'any other appropriate relief', is couched in broad terms and, read with Article 159(2)(d) of the Constitution, grounds the ELRC's discretion to set aside dismissal orders made for non-attendance.
- An appellate court will not interfere with a discretionary decision of the judge appealed from unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
Court orders
#- 1.The appeal fails and is dismissed with costs to the respondent
- 2.The ruling and orders of the ELRC (A. Nzei, J.) dated 8th December 2022 are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court Act; appeal against exercise of the ELRC's discretion under section 12(3)(viii) read with Article 159(2)(d) of the Constitution
Relief refused
#The appellant's appeal seeking to set aside the ELRC's ruling reinstating the respondent's dismissed suit
The trial court was not functus officio, as the suit had never been determined on its merits, and the learned Judge's exercise of discretion disclosed no error warranting appellate interference
Costs
The appeal was dismissed with costs to the respondent.
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.
It is clear that the doctrine of functus oficio does not bar a court from entertaining a case it has already decided, but prevents it from revisiting the matter on a merit-based reengagement once final judgment has been entered and a decree issued, as is the case herein.
Functus oficio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.
While we acknowledge the fact that the functus oficio doctrine retains its validity, even vitality …, it is our view that in certain situations, this doctrine ought to give way, albeit on a case by case basis.
section 12 of the 2014 ELRC Act read with Article 159(2) (d) of the Constitution provide a firm foundation for the exercise by the trial court of an array of discretionary powers to guarantee equal access to justice and the right to fair hearing.
we come to the inescapable conclusion that the appeal fails and is hereby dismissed with costs to the respondent. Consequently, the ruling and orders of the ELRC (A. Nzei, J.) dated 8th December 2022 are hereby upheld. Orders accordingly.
Issues in the judgment
#The judgment dates the dismissal order and the impugned ruling inconsistently: the ruling allowing the set-aside Motion is dated 8th December 2022, yet ground 1 of appeal refers to 'the Order made by her on 8th December 2022' in the context of setting aside what is elsewhere described as the 8th March 2022 dismissal order.
The judgment refers to 'section 12 of the 2014 ELRC Act' although the statute is elsewhere described as the Employment and Labour Relations Act, 2011 and the ruling quotes section 12 of that Act.
The introduction to the appellant's list of ten grounds of appeal is followed by paragraph 7 beginning 'In support of the appeal...' before the grounds continue with grounds 9 and 10, indicating a broken numbering sequence in the text of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Middle East Bank Kenya Limited v Ngunjiri (Civil Appeal E019 of 2023) [2026] KECA 238 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/238/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.