Twaweza Apparel (EPZ) Limited v Okoth & another (Appeal E012 of 2024) [2024] KEELRC 1558 (KLR)
The bottom line
#Kenya's Employment Court reinstated a dismissed appeal because no hearing notices were served, but penalized the appellant for its own years of inaction.
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 application dated 3 May 2024 to set aside the dismissal order of 29 May 2023 and reinstate the appeal should be granted
- 2.Whether the dismissal of the appeal for want of attendance was justified given that no notices of the mentions of 17 and 29 May 2023 were served on the parties
- 3.Whether the appellant's inaction in prosecuting the appeal should disqualify it from reinstatement
- 4.Who should bear the costs of the application
Key legal issues
#Effect of failure to serve notices before dismissal of an appeal for want of attendance
The dismissal was irregular because the court registry failed to serve notices for the mentions of 17 and 29 May 2023; the appellant could not know the matter was coming up, engaging the fair hearing and fair administrative action guarantees of articles 50(1) and 47 of the Constitution.
The court accepted that no notices were served for either mention date. It held that the court ought to have served notices and issued a written notice before taking the adverse action of dismissing the appeal. Absent service, the appellant was unaware of the proceedings, and the dismissal could not stand. However, the court balanced this against the appellant's own lethargy, granting reinstatement only conditionally and with costs to the respondent.
The applicant's own inaction and duty to prosecute an appeal
Although reinstatement was granted, the appellant was at fault for filing a Memorandum of Appeal and taking no further step to prosecute it, including non-compliance with rule 8 of the ELRC (Procedure) Rules, 2016; it therefore could not claim costs and was ordered to pay the respondent's costs.
The court observed that apart from filing the Memorandum of Appeal on 14 February 2023, the appellant did nothing until execution was levied against it following the decree of 18 January 2024. Its interest in the appeal was only prompted by the respondent's execution. The court therefore denied the appellant its costs, assessed the 1st respondent's costs at Kshs. 10,000, and directed the parties to address compliance with rule 8 at the first directions hearing.
Legal principles established
#- Before an adverse order such as dismissal for want of attendance is made, the parties must be served with written notice, per article 47 of the Constitution on fair administrative action
- Reinstatement of an appeal dismissed without notice may be granted conditionally, in the interests of justice, with the applicant bearing costs to compensate the respondent for the delay
Court orders
#- 1.The order dismissing the appeal made on 29 May 2023 and issued on 19 March 2024 is conditionally set aside and the appeal reinstated
- 2.The appellant to pay the 1st respondent Kshs. 10,000 as costs of the application, to be paid within 14 days
- 3.Parties to attend court on 17 June 2024 to address the court on section 17 of the Employment and Labour Relations Court Act, 2011 and rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Appellate and supervisory jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate CMELRC (Mombasa CMELRC No. 331 of 2019); Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Costs of the application in favour of the appellant
The appellant's inaction in prosecuting the appeal was not explained or justified; it acted only after execution proceedings were initiated against it
Costs
The appellant is to pay the 1st respondent Kshs. 10,000 as costs of the application, assessed and payable within 14 days.
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.
Indeed, this lapse in the issuance of court notices for 17 and 29 May 2023 is correct. The court should and ought to have served notices to the parties upon the Court Orders on these dates. None issued.
Indeed, article 47 of the Constitution requires that before an adverse action is taken, written notice should be issued.
Given no notice having been issued to the parties, in the interests of justice, the orders sought shall be conditionally issued.
The appeal herein is reinstated.
The appellant is to pay the 1st respondent Ksh. 10,000 for its costs.
Issues in the judgment
#Inconsistent dates in the judgment: the ruling dismissing the Notice of Objections is first referred to as delivered on 8 September 2021 (claim judgment) and separately as 17 June 2022; paragraph 5 says 'judgment delivered on 8 September 2021' for the claim while paragraph 13 refers to 'the judgment delivered by the trial court on 17 June 2022'
Internal inconsistency: paragraph 3 states both parties were absent at the 29 May 2023 mention 'since no notice was served', yet the judgment elsewhere records the appellant's non-attendance as unexplained
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Twaweza Apparel (EPZ) Limited v Okoth & another (Appeal E012 of 2024) [2024] KEELRC 1558 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Mombasa CMELRC No. 331 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1558/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.