Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2024] KEELRC 1689 (KLR)
The bottom line
#Kenya's Employment Court confirmed an appeal struck out for an incomplete record can be revived, because procedural mistakes shouldn't decide cases on the merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the application offends the doctrine of res judicata
The striking out of the record of appeal for incompleteness was not a merits determination, so the appeal is not res judicata and the court was not functus officio.
The Respondent argued the court was functus officio and that the appeal had become res judicata after the 16th April 2024 judgment striking it out. The court analysed section 7 of the Civil Procedure Act, which requires that the matter directly and substantially in issue has been heard and finally decided. Since the record of appeal was struck out only for incompleteness, the subject of the appeal was never decided on its merits, so res judicata did not apply.
Whether the Applicant was entitled to reinstatement of the appeal and leave to file a supplementary record
Yes; the court set aside its judgment of 16th April 2024, reinstated the appeal and granted 30 days' leave to file a supplementary record, subject to throw-away costs.
Relying on the Court of Appeal decision in Intercounties Importers and Exporters v Teleposta Pension Scheme Registered Trustees & 5 others and the decisions cited therein, the court held that striking out an appeal for incompleteness, where the reason is unavailability of the records, does not serve the ends of justice. Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities, and the omission of a certified decree can be cured by a supplementary record without prejudice to the Respondent, compensable by costs. The court distinguished KRA v Mount Kenya Bottlers, finding the circumstances before the Supreme Court substantially different because the Applicant here sought to set aside the judgment and the missing documents had already been availed through the trial court record.
Legal principles established
#- Where a record of appeal is struck out for incompleteness, the subject of the appeal remains undecided on the merits and is not res judicata.
- It is in the interest of justice for a court to exercise its discretion to set aside the striking out of an appeal for an incomplete record and to grant leave to file a supplementary record, subject to throw-away costs.
Court orders
#- 1.The Judgment dated 16th April 2024 is set aside and the appeal reinstated for hearing
- 2.The Applicant is granted leave to file supplementary record of certified copies of proceedings, judgment and decree of the lower court within 30 days
- 3.The Applicant to pay the Respondent Kshs. 30,000 as throw-away costs in the appeal within 30 days of the ruling
- 4.Mention on 29th July 2024 to confirm compliance and to issue a fresh judgment date
- On appeal from
- Butali Magistrates' Court
- MCELR Case No. 2 of 2018
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules, 2010; Sections 3(1), 16 & 17 of the Employment and Labour Relations Court Act; Rules 8(4), 33 & 34 of the ELRC (Procedure) Rules; Articles 159(2)(d) & 164(3) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2024] KEELRC 1689 (KLR)", Case Analysis (2024). ELRCA No. E005 of 2023 (Notice of Motion dated 26th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1689/eng@2024-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.