Ndaje & 4 others v Milly Fruits Processing Ltd (Civil Appeal E074 of 2023) [2026] KECA 925 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the ELRC erred in dismissing the application to set aside the dismissal of the suit for non-attendance
The appeal fails; the learned Judge's discretionary decision was not faulty and is upheld.
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.
Appellate court's power to disturb a discretionary decision
Interference is warranted only where the judge misdirected herself, was clearly wrong, and injustice resulted.
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.
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.The appeal fails and is dismissed with costs to the respondent.
- 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.
- 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
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.
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.
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
an applicant seeking indulgence must demonstrate blamelessness and good faith.
Issues in the judgment
#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.
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.