https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1323

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E016 OF 2024** *(Before Hon. Lady Justice Maureen Onyango)* **FOSSIL FUEL LIMITED………………………...………. APPELLANT** **VERSUS** **ISAAC ONYIEGO OICHOE………..………….………RESPONDENT** *(Being an appeal from the Ruling delivered by the Honourable P.N Areri (SPM) Eldoret delivered on the 18th April 2024 in CMELRC NO. E043 OF 2018)* **JUDGMENT** 1. This Appeal arises from the ruling of the trial court in Eldoret CMELRC No. E043 of 2018 delivered on 18th April 2024 2. Briefly, the Appellant filed a Notice of Motion dated 2nd February 2024 seeking orders that its case be reopened for purposes of calling witnesses and presenting its defence. 3. The trial court directed that the application be disposed of by way of written submissions. Upon considering the parties’ respective submissions, the court, in a ruling delivered on 18th April 2024, held that the Appellant had been overly indolent and consequently dismissed the application. 4. Aggrieved by the said decision, the Appellant lodged the present Appeal vide a Memorandum of Appeal dated 2nd May 2024 raising the following grounds: - 5. That the learned trial magistrate erred in law and in fact by failing to set aside the orders of 1st February 2024 without taking due consideration of the overwhelmingly justifiable reasons advanced by the Appellant’s counsel and the adverse effect of not setting aside the said orders has on the Appellant vis-à-vis its constitutionally guaranteed right to a fair trial and the cardinal rule of natural justice that a person should not be condemned unheard. 6. That the learned trial magistrate erred in law and in fact by misapprehending the evidence and by misapplying, misunderstanding and overlooking the applicable legal principles and judicial precedents relevant to the circumstances. 7. The Appellant seeks the following reliefs: - 8. This Appeal be allowed with costs 9. That the orders in the ruling dated 18th April 2024 in Eldoret CMELRC No. E043 of 2018 by Hon. P.N. Areri (SPM) be set aside in its entirety and replaced with an order re-opening the Appellant’s case and allowing it to call its witnesses and participate in the proceedings. 10. Any other orders and reliefs this court may deem fit to grant. 11. The Appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 25th November 2025 while the Respondent’s submissions are dated 17th December 2025. **The Appellant’s Submissions** 1. The Appellant framed the following issues for determination:- 2. Whether the learned trial magistrate erred in failing to set aside the orders of 1st February 2024 despite the existence of justifiable reasons. 3. Whether the refusal to set aside the said orders violated the Appellant’s constitutional right to a fair hearing and the principles of natural justice. 4. On the first issue, the Appellant, relying on Article 50(1) of the Constitution, submitted that by failing to set aside the orders of 1st February 2024, the learned magistrate denied the Appellant an opportunity to call its witnesses and present its defence, thereby infringing upon its constitutional right to a fair hearing. 5. The Appellant further submitted that the right to be heard is not only constitutionally entrenched but is also a cornerstone of the rule of law. In that regard, the court was urged to exercise its discretion in favour of substantive justice by allowing the Appeal and granting the Appellant an opportunity to prosecute its case, particularly because the Appellant’s defence raises triable issues deserving ventilation at a full hearing. 6. On the second issue, the Appellant submitted that it had advanced justifiable reasons through its counsel, which reasons the learned magistrate failed to properly consider. The Appellant contended that its counsel had not been served with a hearing notice and was therefore unaware that the matter had been scheduled for hearing on 1st February 2024. 7. The Appellant submitted that the trial court improperly exercised its discretion by dismissing the application dated 2nd February 2024, which sought to set aside the orders made on 1st February 2024 closing the Appellant’s case in its absence. According to the Appellant, the dismissal of the application despite the alleged lack of service amounted to a violation of its right to a fair hearing. 8. It was further submitted that the Appellant moved the court without undue delay after the delivery of the ruling on 18th April 2024 and that its counsel had provided cogent reasons for non-attendance on 1st February 2024, which reasons ought to have persuaded the trial court to reinstate the Appellant’s case. 9. The Appellant argued that the power to dismiss a suit or deny a party an opportunity to present its case ought to be exercised sparingly and only in the clearest of cases. It maintained that the explanation tendered before the trial court was reasonable and sufficient to warrant reopening of the defence case. In support of its position, the Appellant relied on the decisions in ***D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina, Civil Appeal No. 37 of 1978, Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 and John Nahashon Mwangi v Kenya Finance Bank Limited [2015] eKLR.*** 10. The Appellant maintained that it stands to suffer substantial prejudice if denied an opportunity to prosecute its case and urged the court to lean in favour of substantive justice by reopening the defence case. 11. In the end, the Appellant urged the Court to find that the Appeal is meritorious, allow the same, set aside the ruling dated 18th April 2024 in Eldoret CMELRC No. E043 of 2018 and substitute it with an order reopening the Appellant’s case and permitting it to call its witnesses. **The Respondent’s Submissions** 1. The Respondent identified the following issues for determination:- 2. Whether the proceedings and orders of the subordinate court made on 18th April 2024 were proper. 3. Whether the Appellant’s case ought to be reopened. 4. On the first issue, the Respondent submitted that the decision whether or not to set aside a court order is discretionary and that such discretion must be exercised judiciously and upon sufficient cause being shown. 5. In support of this position, the Respondent relied on the case of **Wachira Karani v Bildad Wachira [2016] eKLR**. The Respondent maintained that a party seeking the setting aside of court orders must demonstrate sufficient cause warranting the exercise of the court’s discretion in its favour. 6. The Respondent submitted that the Appellant is misguided and undeserving of the orders sought. According to the Respondent, the hearing date for the defence case was taken by consent in the presence of counsel for all parties and, on the hearing date, the Appellant’s advocate failed to attend court without any sufficient explanation. The Respondent maintained that there was no valid reason advanced to explain the absence of the Appellant or its counsel during the defence hearing. 7. The Respondent further argued that if the Appellant was not ready to proceed with the hearing, then its counsel ought to have appeared before the court and seek an adjournment. According to the Respondent, the absence of both the Appellant and its counsel demonstrated a lack of readiness and diligence in prosecuting the defence case. 8. It was further submitted that the Appellant’s non-attendance was a result of negligence and carelessness and that this Court ought not to reward such conduct by reopening the defence case. The Respondent contended that the present Appeal is merely intended to delay the conclusion of the matter. 9. Consequently, the Respondent urged the Court to find that the Appellant had failed to demonstrate sufficient cause to warrant the setting aside of the orders issued by the trial court on 18th April 2024. 10. On the second issue, the Respondent relied on the decisions in ***Wavinya Mutavi v Isaac Njoroge & Another [2020] eKLR*** and ***Simba Telecom v Tumwesige Ambross & Another, Civil Suit No. 241 of 2011 [2014] UGCommC 197*** and submitted that the Appellant had failed to meet the threshold for reopening a case. 11. In the premises, the Respondent urged the Court to dismiss the Appeal with costs. **Analysis and Determination** 1. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the parties. See ***Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123.*** 2. The record shows that the Respondent instituted the suit vide a Statement of Claim dated 23rd July 2018 filed on 5th September 2018, following which the Appellant entered appearance on 27th September 2018. 3. After the close of pleadings, the suit proceeded for hearing on 26th July 2022 when Kefa Onduso Moreka testified as PW1, Abeid Bakari Abeid testified as PW2 and the Respondent testified as PW3. It is important to point out that there were three cases which were consolidated hence the existence of Kefa Onduso Moreka, PW1 and Abeid Bakari Abeid, PW2, whose cases were consolidated with the Case of the Respondent herein. 4. Upon the close of the Respondent’s case, the court directed that the Appellant’s defence case be heard on 15th November 2022. On that date, counsel for the Appellant informed the court that the Appellant’s witness had since left employment, prompting the court to adjourn the matter to 28th February 2023. On 28th February 2023, Mr. Mutugi holding brief for Mr. Ndege for the Appellant informed the court that the Appellant’s witness was unavailable and sought an adjournment. The matter was initially stood over to 11.30 a.m. but the record indicates that it was eventually adjourned to 11th May 2023 owing to the absence of counsel for the Respondent. 5. On 11th May 2023, the matter was again adjourned as both parties were absent. Thereafter, the file was returned to the registry. On 18th May 2023, the matter was fixed for mention on 17th August 2023 for purposes of taking a hearing date. On 17th August 2023, the record indicates that Mr. Kipkirui holding brief for Mr. Mathai for the Respondent and Mr. Okongo for the Appellant were present when the matter was fixed for defence hearing on 1st February 2024. 6. On 1st February 2024, Mr. Kinyanjui appeared holding brief for Mr. Mathai for the Respondent while there was no appearance for the Appellant. Counsel for the Respondent then applied for the closure of the defence case on account of the Appellant’s non-attendance. The court consequently ordered that the defence case be closed. 7. Following the said orders, the Appellant filed the application dated 2nd February 2024 seeking reopening of its case and expansion of time to file witness statements. 8. The application was canvassed by way of written submissions. In a ruling delivered on 18th April 2024, the trial court found that the Appellant had been overly indolent and had failed to provide satisfactory reasons warranting the setting aside of the orders made on 1st February 2024. It is this ruling that precipitated the present Appeal. 9. The court has carefully considered the record of appeal, the ruling of the trial court, the grounds of appeal and the rival submissions by the parties. In my view, the issue that falls for determination is whether the learned trial magistrate properly exercised his discretion in declining to set aside the orders made on 1st February 2024 and refusing to reopen the Appellant’s case. 10. It is trite that the power to set aside ex parte orders or to reopen a party’s case is discretionary. Such discretion, however, must be exercised judiciously and not capriciously, with the primary objective being to do substantive justice between the parties. In ***Patel v E.A. Cargo Handling Services Ltd [1974] EA 75***, it was held: - *“There are no limits or restrictions on the judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.”* 1. Additionally, courts have consistently held that the right to be heard is a fundamental component of the constitutional guarantee to a fair trial under Article 50(1) of the Constitution and that, wherever possible, disputes ought to be determined on their merits rather than on procedural defaults. Nevertheless, a party seeking the exercise of the court’s discretion must demonstrate sufficient cause and must also show diligence in the conduct of the matter. 2. From the record before this Court, it is evident that the matter had been pending for a considerable period of time and that the Appellant had on previous occasions sought adjournments on account of the absence of its witnesses. The record further shows that on 17th August 2023, counsel for both parties were present when the matter was fixed for defence hearing on 1st February 2024. The Appellant’s contention that it was unaware of the hearing date due to lack of service of a hearing notice is not borne out by the court record as the hearing date was taken by consent in the presence of both counsel. Further, there was no order for service of hearing notice. Where a hearing date is taken in the presence of counsel, no further service of a hearing notice is required. 3. Further, on the hearing date, neither the Appellant nor its counsel appeared before the court to explain their absence or to seek an adjournment. The Appellant only moved the court after the defence case had been closed. 4. It is further evident that even had the Appellant been present on that date it would not have been ready to proceed as it had not filed a substituted witness statement even though it had been granted leave to file the same on 15th November 2022, more than a year to the date when its case was closed. 5. It is material that in the application dated 2nd February, 2024 which gave rise to the instant appeal, prayer No. 4 thereof reads: “That *this Honuorable Court be pleased to enlarge time to allow the Respondent substitute its witness and file witness statements in the consolidated files being Eldoret MCELRC No. 41 and 42 of 2018 all dated 29th January, 2024 and annexed herein and the same be deemed as properly filed upon payment of requisite fees.”* 1. In the circumstances, the learned trial magistrate cannot be faulted for finding that the Appellant had been indolent in the conduct of the matter. 2. This Court is alive to the importance of according parties an opportunity to fully ventilate their cases. However, the right to be heard is not a license for litigants to disregard court directions or fail to attend court without sufficient cause. Litigation must come to an end and courts are entitled to safeguard the integrity of their processes by ensuring that parties prosecute their cases diligently. 3. Additionally, justice cuts two ways. As much as the Appellant was entitled to be given an opportunity to ventilate its case, the Respondent too was entitled to have his case concluded expeditiously. 4. In the instant case the Appellant was not denied justice, he was given several opportunities to be heard but squandered the same, first by failing to file substituted witness statement as directed, and secondly by failing to attend court on a date fixed for hearing of the case. In its application that was dismissed by the trial court the Appellant had urged that it was not served with a hearing notice, a ground that was not valid as the hearing date had been taken by consent in the presence of both counsel. 5. Having reviewed the record and the reasons advanced before the trial court, I am not persuaded that the learned trial magistrate misdirected himself in principle, took into account irrelevant considerations, failed to consider relevant matters or otherwise exercised his discretion injudiciously. The Appellant failed to demonstrate sufficient cause for its non-attendance on 1st February 2024 and the learned magistrate was therefore entitled to decline the invitation to reopen the defence case. 6. Accordingly, I find that the Appeal lacks merit and the same is hereby dismissed with costs to the Respondent. 7. Trial court file to be returned to the lower court for conclusion of the case. 8. Orders accordingly. **DATED, DELIVERED AND SIGNED** **THIS 14TH DAY OF MAY, 2026.** **M. ONYANGO** **JUDGE**