Mbugua v Child Care World Wide (K) & another (Employment and Labour Relations Appeal E025 of 2022) [2024] KEELRC 1182 (KLR)
The bottom line
#Kenya's Employment Court restored a worker's dismissed case, ruling nobody should lose their day in court over a technicality like missing a virtual hearing.
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 Appellant's case ought to be reinstated since her suit was dismissed without according her a chance to prosecute her claim to conclusion
- 2.Whether the Appellant is being condemned unheard
- 3.Whether there is a competent appeal before the Court (raised by the Respondent)
Key legal issues
#Whether the dismissal of the claim for want of prosecution, following non-attendance, should be set aside
Yes. The dismissal was purely based on a technicality as opposed to consideration of substantive issues, and the appellant should be granted an opportunity to be heard.
The Court noted that on 18/10/2022 the trial court allowed the application to dismiss the claim as unopposed after neither the claimant nor her advocate attended. It found that although the lower court may have had good reason, the dismissal was based purely on a technicality. The Court took judicial notice of connectivity challenges, found the non-attendance not deliberate, and invoked the principle that a party should never be condemned unheard. It therefore allowed the appeal, set aside the dismissal and remitted the claim for hearing on merit.
Whether the appeal was incompetent for want of leave under Order 43 of the Civil Procedure Rules and Section 75 of the Civil Procedure Act
The Court did not strike out the appeal on this ground despite the Respondent's submissions; it proceeded to determine the appeal on its merits.
The Respondent argued that an appeal against an Order 17 Rule 2 dismissal for want of prosecution lies only with leave, relying on Euro Bank v Shah Munge and other authorities, and urged striking out. The Court, having examined the averments and submissions, did not address or adopt that argument, instead exercising its discretion on access to justice grounds and allowing the appeal. No finding on the competency issue is expressly recorded.
Legal principles established
#- A party should never be condemned unheard; dismissal for non-appearance based purely on a technicality should yield to an opportunity to be heard.
Court orders
#- 1.The appeal is allowed
- 2.Orders dismissing the appellant's case are set aside
- 3.The claim is remitted back to the lower court for hearing on merit
- 4.Costs to be in the claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nakuru Chief Magistrate's Court (ELRC Cause 256 of 2019)
- Nakuru CM ELRC Cause 256 of 2019
- Jurisdiction invoked
- Appellate jurisdiction over a ruling of the trial magistrates' court in an employment cause; the Respondent challenged competence for want of leave under Order 43 of the Civil Procedure Rules and Section 75 of the Civil Procedure Act, but the Court proceeded to determine the appeal on its merits
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 principle of access to justice envisages that a party should never be condemned unheard and a party should be heard in order to submit their case whether merited or not or whether it can be determined in their favour or not.
I take judicial notice of the fact that indeed at times there are connectivity challenges and a Claimant should not be closed out of their case and should be allowed to feel they have been heard whether in their favour or against them.
I therefore allow the appeal, set aside orders dismissing the appellant’s case and direct that the claim be remitted back for hearing before the lower court on merit. Costs to be in the claim.
Issues in the judgment
#The Respondent argued the appeal was incompetent for want of leave under Order 43 of the Civil Procedure Rules, but the Court neither expressly addressed nor ruled on that competency issue before allowing the appeal.
The judgment does not state the appeal's own case number; it only identifies the trial court cause (Nakuru CM ELRC Cause 256 of 2019).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua v Child Care World Wide (K) & another (Employment and Labour Relations Appeal E025 of 2022) [2024] KEELRC 1182 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1182/eng@2024-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.