Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedELLC Appeal (Mombasa) - interlocutory appeal from ELRC Cause No. 651 of 2015 (as stated in judgment; no appeal number printed)

Ndaje & 4 others v Milly Fruits Processing Ltd (Civil Appeal E074 of 2023) [2026] KECA 925 (KLR)

Court of Appeal of Kenya
15 May 2026
2,611 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that employment suits left dormant for years will stay dismissed unless claimants offer a credible, compelling explanation for the delay.

What this practically means

#

Executive summary

#
This interlocutory appeal arose from an employment claim by five former employees of Milly Fruits Processing Limited, filed in the ELRC at Mombasa in 2015, seeking declarations and monetary reliefs for unlawful termination. The cause, plagued by repeated adjournments and non-attendance by both sides, was dismissed on 22nd March 2022 when none of the appellants or their counsel appeared. Their Motion to set aside the dismissal, supported by counsel's affidavit blaming an appearance before another judge, was dismissed by Nzei, J. in a ruling dated 10th November 2022, the Judge noting the absence of any satisfactory explanation and the non-existence of the order dated 23rd March 2022 which the applicants sought to set aside. On appeal, the Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJ.A) framed a single issue: whether the learned Judge erred in dismissing the Motion and declining to reinstate the suit. The Court held that a claim filed in 2015 and still unheard by November 2022 was inordinately delayed on its face, requiring compelling justification which the claimants did not offer. Citing Article 159(2)(b) and (d) of the Constitution, rule 22(2) of the ELRC (Procedure) Rules, 2016, Vijay Morjaria, Joseph Lendrix Waswa and United India Insurance, the Court held that no ground existed to disturb the discretionary decision. The appeal was dismissed with costs to the respondent and the ELRC ruling and order of 10th November 2022 upheld.

Questions the Court framed

#

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

  1. 1.Whether the learned Judge was at fault in dismissing the appellants' Motion for orders to set aside the ruling dismissing their suit for non-attendance pursuant to rule 22(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016, and in declining to reinstate their suit as prayed.

Key legal issues

#
01

Whether the ELRC erred in dismissing the application to set aside the dismissal of the suit for non-attendance

Holding

The appeal fails; the learned Judge's discretionary decision was not faulty and is upheld.

Reasoning

Rule 22(2) of the ELRC (Procedure) Rules, 2016 permits dismissal for non-attendance except for good reason. The claimants gave no credible explanation for their absence on 22nd March 2022, and the suit had lain unheard for some seven years. Allowing perpetually dormant suits offends Article 159(2)(b) and (d) of the Constitution. Applying Joseph Lendrix Waswa v Republic and United India Insurance, no ground for interfering with discretion was established.

p. 4
02

Appellate court's power to disturb a discretionary decision

Holding

Interference is warranted only where the judge misdirected herself, was clearly wrong, and injustice resulted.

Reasoning

Relying on the Supreme Court in Joseph Lendrix Waswa v Republic and Madan, JA in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, the Court restated the five established grounds for interfering with discretionary decisions and found none present on a close scrutiny of the appellants' case.

p. 5

Legal principles established

#
  • Where claimants fail to prosecute their cause with diligence over an inordinate period without credible explanation, the court is entitled, and obligated by the overriding objective, to dismiss the suit to protect the integrity of the judicial process.
  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took or failed to take account of relevant considerations, or the decision is plainly wrong.
  • A suit remaining unheard on its merits for approximately seven years constitutes inordinate delay on its face, requiring compelling justification from the claimant.

Court orders

#
  1. 1.The appeal fails and is dismissed with costs to the respondent.
  2. 2.The ruling and order of the ELRC (A. M. K. Nzei, J.) dated 10th November 2022 is upheld.

The bench

#

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

majority
majority
On appeal from
Employment and Labour Relations Court at Mombasa
ELRC Cause No. 651 of 2015 (ruling dated 10th November 2022)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court (interlocutory appeal against a ruling on an application to set aside dismissal for non-attendance); no specific provision is quoted in the judgment.

Relief refused

#

Setting aside the dismissal of the appellants' suit for non-attendance and reinstatement of the suit

No credible explanation for absence; seven-year delay inordinate; no basis to disturb the discretionary decision

p. 4

Costs

The appeal is 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.

we reach the inescapable conclusion that the appeal fails and is hereby dismissed with costs to the respondent. Consequently, the ruling and order of the ELRC (A. M. K. Nzei, J.) dated 10th November 2022 be and is hereby upheld.
Final orders - dismissal of appeal
Permitting perpetually dormant suits to subsist as was the case here runs counter to that mandate. For this reason alone, the ELRC was justified in dismissing the Motion to set aside its Ruling and reinstate the suit.
p. 4Overriding objective against dormant suits
Discretionary pronouncements of a Court, as we have stated in several decisions, form an integral part of a Court’s jurisdiction and should not be interfered with unless an Appellate Court is satisfied that the exercise of that discretion was improper
p. 4Non-interference with discretion
an applicant seeking indulgence must demonstrate blamelessness and good faith.
p. 4Vijay Morjaria principle on reinstatement applications

Issues in the judgment

#
minor

Internal date inconsistency in the chronology: the judgment records a mention on '10th January 2019' after a hearing date fixed for '24th October 2019', and states the dismissal order sought to be set aside variously as 23rd March 2022 and 22nd March 2022.

minor

The appeal number of the interlocutory appeal before the Court of Appeal is not stated anywhere in the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndaje & 4 others v Milly Fruits Processing Ltd (Civil Appeal E074 of 2023) [2026] KECA 925 (KLR)", Case Analysis (2026). ELLC Appeal (Mombasa) - interlocutory appeal from ELRC Cause No. 651 of 2015 (as stated in judgment; no appeal number printed). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/925/eng@2026-05-15

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