https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1783

Aduo & 7 others v Spellman and Walker Company Ltd (Appeal E355 of 2025) [2026] KEELRC 1783 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1783 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E355 of 2025 M Mbarũ, J June 29, 2026 Between Calvince Odiwour Aduo 1st Appellant Oscar Lubanga Juma 2nd Appellant Nicholus Ouma Juma 3rd Appellant Julius Otieno Oyo 4th Appellant Yonah Otsyula Odhiambo 5th Appellant Patrick Odhiambo Owuoth 6th Appellant Caleb Okoth Ogendo 7th Appellant Elias Owino 8th Appellant and Spellman and Walker Company Limited Appellant (Being an appeal from the ruling of Hon D.O Mbeja delivered on 8 October 2025 in Milimani CMCC No. MCELRC E1078 of 2021) Judgment 1.The Appeal arises from a ruling delivered on 8 October 2025 in Milimani MELR E1078 of 2021 of 2025. The Appeal is on the grounds:1.The learned magistrate erred in law and fact in dismissing the Appellant’s suit for want of prosecution without due consideration2.The learned magistrate erred in law and fact in failing to appreciate that the Appellants had demonstrated sufficient cause and genuine intention to prosecute the suit3.The learned magistrate erred in law and in fact in failing to consider that dismissal for want of prosecution is a draconian step which should only be taken in clear cases of inexcusable indolence, which was not demonstrated in this matter4.The learned magistrate erred in law and fact by failing to exercise judicial discretion judiciously and thus arriving at an erroneous decision that occasioned a miscarriage of justice5.The learned magistrate failed to consider the overriding objectives of the Civil Procedure Act and the constitutional imperative under Article 159 (2) (d) of the Constitution of Kenya, 2010, which requires that justice be administered without undue regard to procedural technicalities.The appellants filed their claim before the trial court on 5 July 2021. 2.They claimed that they were employed by the respondent on various dates between 2014 and 2019. The employment was terminated unfairly, wrongfully, and maliciously, without notice, without a hearing, and in breach of the Employment Act. 3.In response, the Respondent admitted the employment relationship and that the Appellants were found guilty of hiding some items, which the Respondent had investigated and found them culpable for. Their employment was terminated fairly and lawfully, with the proper procedures followed. 4.The matter was listed for hearing before the trial Court on 8 October 2025, upon the trial court giving a last adjournment. The Respondent’s Counsel was in court and ready to proceed with the hearing, whilst the Appellants' Counsel was absent. The appellants, too, were absent. The Court proceeded and dismissed the suit with costs to the Respondent for non-attendance. 5.On the appeal, the appellants submitted that, upon the Respondent's failure to attend Court on 28 March 2022, the Court directed that the parties proceed with the matter by way of documents in accordance with Rule 21 of the Employment & Labour Relations Court Procedure Rules. The matter later came for a hearing on 8 October 2025. Counsel for the Appellants attended Court and took a time allocation. However, her call dropped along the way, and the suit was dismissed for non-attendance. 6.The appellants submitted that in Michael Muriuki Ngibuini v East Africa Building Society [1999] KLR, the test in applications relating to dismissal for want of prosecution is whether the delay is prolonged and inexcusable, and, if so, whether justice can still be done despite the delay. The court failed to apply this principle properly and instead adopted a rigid procedural approach inconsistent with the demands of substantive justice. 7.In Raila Odinga & 5 others v Independent & Boundaries Commission & 3 others, the court held that Article 159 of the Constitution was introduced to ensure that courts do not sacrifice substantive justice at the altar of procedural technicalities. The learned magistrate failed to exercise judicial discretion and balance procedural requirements against the constitutional dictates of access to justice, a fair hearing under Article 50(1), and the substantive determination of disputes. The resultant dismissal occasioned grave prejudice to the Appellants and amounted to a miscarriage of justice, particularly considering that the Appellant had demonstrated a genuine intention to prosecute the claim and had advanced a plausible reason for the delay. 8.Thus, in Lucy Wambere Muthee v Samuel Githu Mburu [2016] KEHC 7996 KLR, the Court emphasised that substantive justice requires hearing parties on the merits and that procedural rules should not be applied rigidly where doing so would cause injustice.There are no submissions on record for the Respondent. Determination 9.This being a first appeal, the court may review the record, reassess the findings, and reach its conclusion. However, take into account that the learned magistrate had the opportunity to hear the parties before the court.The gist of the appeal is the dismissal of the suit for want of prosecution. 10.The appellants challenge the dismissal of their suit for non-attendance and assert that the learned magistrate failed to apply his discretionary powers judicially. 11.The matter came up before the trial court on 8 October 2025 for a hearing before the learned magistrate. The appellants and their advocate were absent. The respondent was in attendance. The learned magistrate had earlier mentioned the matter and given the last adjournment. 12.In the written submissions, the appellant asserts that counsel logged into the virtual platform, but the call dropped. 13.Ordinarily, technology will fail us at some point. What are you supposed to do? Move the court immediately and state your case honestly and reasonably. Have counsel attend court for the scheduled hearing, and further ensure that the client, the right holder, is present in court in the event counsel is unable to attend for any reason, including due to connectivity issues. 14.The only reason given by the appellants for non-attendance in court on 8 October 2025 is that counsel’s call dropped. The appellants were not addressed in their case. 15.The learned magistrate had given a last adjournment. Parties were thus required to attend court for a hearing on 8 October 2025. They failed to attend, and the record shows that when the matter was called, the appellants were absent. 16.In Route 3 Company Limited & another v Nairobi City County & another [2025] KECA 315 (KLR), the court addressed an appeal such as herein. The suit before the trial court was dismissed for non-attendance, and counsel stated that the call linking to the court session dropped. 17.However, the court in the case analysed the facts before the trial court and held that an order dismissing the suit is premised on the trial court's discretion. Unless there is a demonstration that such discretion is not applied judicially, an appellate court should not interfere with such discretion. 18.In Edelvale Trust Jamaa Home & Mission Hospital v Thenya & 2 others [2026] KECA 1110 (KLR), the court held that an appellate court will not interfere with the trial court’s exercise of discretion even if it would have reached a different conclusion. Thus, the court held that. 19.On appeal, [the court] is only entitled to interfere with a discretionary decision if it establishes that: the judge misdirected himself in law; misapprehended the facts; took account of considerations he should not have taken account of; failed to take account of considerations he should have taken account of; or his discretionary decision is plainly wrong. The respondents argue that since the appellant has failed to demonstrate that the learned trial Judge erred in any of the five sets enumerated in United India Insurance Co. Ltd. (supra), this Court should not interfere with the discretion of the Superior Court.” 20.In this case, the parties attended court and were allocated a hearing date as a last adjournment. On the scheduled hearing, the matter was called, and the appellants were absent. 21.It is noteworthy that there are several appellants. When the call for counsel dropped, none of them was available to respond and secure their interests. 22.In this regard, the learned magistrate properly exercised his discretion and dismissed the suit for non-attendance. Such is not a technicality that can be cured through the application of Article 159 of the Constitution. Non-attendance in a scheduled hearing is part of justice. 23.The appeal is without merit and is hereby dismissed. The orders of dismissal of suit in Nairobi (Milimani) CMELRC MCELRC E1078 of 2021 are confirmed. Each party to bear its costs. DELIVERED IN OPEN COURT THIS 29TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga…………………………………… and …………………………………..…