https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1557

Frodak Kenya Limited v Angatia (Civil Appeal E340 of 2021) [2026] KECA 1557 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1557 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E340 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA July 31, 2026 Between Frodak Kenya Limited Appellant and Mark Bushuru Angatia Respondent (An appeal against the ruling of the Employment and Labour Relations Court at Eldoret (Abuodha, J.) delivered on 6th November, 2020 in ELRC No. 62 of 2018 (Formerly Eldoret ELC No. 251 of 2014)) Judgment 1.This appeal raises the narrow question of whether the appellant was denied a right to a hearing and whether the trial Judge erred in failing to set aside an ex parte judgment entered against the appellant. The main question for determination, as will appear later in the judgment, is whether the learned Judge’s refusal to set aside the ex parte judgment amounts to a proper exercise of the discretionary power that is bestowed on Judges. 2.To put the appeal in context, we shall give a brief background to the dispute. By a statement of claim dated 24th January 2018, the respondent filed a suit against the appellant claiming damages for unfair, unprocedural and unlawful termination of employment. The respondent was served with summons, and it entered appearance through the firm of S. O. Madialo and Co. Advocates. It also filed a reply to the claim denying that the respondent was its employee and that a contract of employment existed. The appellant therefore denied that it unlawfully terminated the services of the respondent. 3.It is common ground between the parties that the suit was fixed for hearing and proceeded ex parte. The claim came up for hearing on 26th June 2018 before Mbaru, J. on 26th June 2018. The appellant was absent, and the court allowed the respondent to file an affidavit of service, as proof of service of the hearing notice. The court was satisfied with service of the hearing notice on the appellant’s advocates and the hearing proceeded. The respondent gave evidence and closed his case. In a judgment dated 29th June 2018, the learned Judge entered judgment in favour of the respondent. 4.On 21st December 2019, the appellant filed an omnibus application seeking several orders as follows: leave to the firm of Okong’o Wandago & Co. Advocates to serve notice of change of advocates on M/s S. O. Madialo & Co. Advocates; stay of execution of judgment and decree of the court dated 29th June 2018; and the setting aside of consequent orders. 5.The grounds in support of the application were that: the appellant had filed a memorandum of appearance and a reply to the statement of claim; that no notice of entry had been served on them or their advocate; that the appellant and his advocate were not aware of the hearing date; that the mistake of an advocate should not be visited on the appellant; that the respondent was not an employee; and therefore it had it had a plausible defence. The application was supported by the affidavit of its director, Fredrick Onyango, sworn on 28th November 2019, which reiterates the grounds in the application and therefore there is no need to rehash it again. 6.The application was opposed by the respondent, who filed a replying affidavit sworn by the respondent on 22nd March 2021. The main grounds were: that the firm Ken Omollo & Co. Advocates that had filed the application was not properly on record; that there was material non-disclosure as the parties had recorded a consent on costs on 24th October 2019; and that the appellant had been served with a hearing notice but failed to attend court; therefore, the hearing proceeded ex parte in accordance with the law and that there was inordinate delay in filing the application. 7.The learned Judge (Abuodha, J.) heard the application and dismissed it with costs. The relevant part of the ruling reads as follows:“6.Further, setting aside a judgement of the Court validly entered after a hearing and a hearing de novo amounts to double work for the Court. A party seeking the setting aside of a judgement must therefore put forward sufficient and reasonable cause why the judgement should be set aside.7.The applicant herein was initially represented by Ms S.O Madialo who entered appearance and filed a response to the claim. The said law firm never attended Court when the matter came for hearing on 26th March, 2018, and the learned judge being convinced there was proper service, proceeded to hear the Claimant ex parte and delivered her judgement on 29th June, 2018.8.By a Motion dated 28th November, 2019 filed by the firm of Ken Omollo and Company Advocates, the respondent /Applicant sought to set aside the judgement of the Court delivered on 29th June, 2018. This application was on 28th January, 2020 dismissed for non -attendance.9.The present application dated 21st December, 2019 was filed on 20th July, 2020 some six months after it ready for filing and after the earlier application dated 28th November, 2019 had been dismissed for non-attendance.10.It is therefore not correct that the respondent/ applicant became aware of the judgement herein on 21st December, 2019 when the present drafted the present application and eventually filed the same on 20th January, 2020. The respondent became aware of the Judgement herein at least by 21st December, 2019 when it instructed Ken Omollo Advocate to set aside the same.11.Curiously the respondent in the instant application makes no mention of the earlier instruction to Ken Omollo Advocate. The present application seems to focus more on the firm of S.O. Madialo Advocates and how the said firm failed to communicate about the case before the Court, leading to ex parte judgement.12.By filing the application dated 28th November, 2019 through Ken Omollo advocate technically meant Ms S.O Madialo had been removed from the proceedings hence blaming the said law firm for not keeping the respondent informed of the case was therefore misrepresentation of facts.13.Second by consent note dated 24th October, 2019 the law firm of Okong’o Wandago & Company, the movers of the present application entered into consent on party and party costs with the Claimant’s advocate at Kshs. 130,000/=. The question that begs to be answered by the respondent and its Counsel is how was it possible to enter into a consent on party and party costs with regard to a judgement they considered unfairly obtained and wanted set aside.14.The sum total of all these inconsistencies makes believable the submission by Counsel for the Claimant that the present application is frivolous, abuse of the Court process and not brought in good faith.15.As observed earlier in the ruling, a party seeking to benefit from discretionary power of the Court must approach the Court with clean hands. The applicant before me in this application is dishonest and has suppressed material facts hence cannot benefit from the discretionary powers of the court.” 8.The appellant, aggrieved by the ruling, filed a notice of appeal dated 18th March 2021 and a memorandum of appeal dated 6th December 2021. 9.We heard the appeal virtually on 26th May 2026. The appellant was represented by Mr. Mua Wambua, advocate, while the respondent was represented by Mr. Lubanga, advocate. The parties relied on their written submissions that were briefly orally highlighted. 10.We have taken the liberty to summarize the grounds as that the learned Judge erred in law and fact in: failing to find that the jurisdiction to review orders and judgment conferred on the court by the Employment and Labour Relations Court Act and the Employment and Labour Relations Court (Procedure) Rules could not be ousted by fact the parties entered into a consent on party and party costs; failed to accord the appellant a fair hearing and the right to be heard; failing to consider that the appellant had a good defence to the claim; and in ignoring the fact there was a change of advocates and that it could not be blamed for failure to follow up the matter in court. 11.The appellant filed submissions dated 25th May 2026. It argued that though it signed a consent on costs, that did not oust the jurisdiction of the court to review or set aside the judgment. Citing the case of Jades Collections Limited vs. Kenya Union of Commercial Food and Allied Workers Union Limited [2020] eKLR, the appellant argued that the learned Judge should have considered that it had a good defence to the claim and it would suffer prejudice if it was not given a right to defend the claim. Further, citing the case of Phillip Chemwolo & another vs. Augustine Kubende 1982-1988 KAR 103, it submitted that even when a blunder has been made, a party should be allowed to defend a suit unless there is fraud or intention to overreach and that there is no error that cannot be compensated with costs. 12.The appellant argued that, as the employer-employee relationship was contested, the appellant ought to have been granted an opportunity to demonstrate that it did not exist. Further, it was urged that it was not clear what the respondent’s claim was, and that an important issue for consideration was whether the respondent was allowed to depart from his pleaded case. Citing Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR, the appellant urged that the judgment entered was not on a claim for redundancy and should not have stood as it was not supported by pleadings. 13.The appellant submitted that the learned Judge erred by finding that the firm of S.O Madialo & Co. Advocates had been removed from the record and replaced with Ken Omollo & Company Advocates. Further, that this position was incorrect as the notice of appointment of advocates dated 28th November 2019 indicated that they were to act alongside each other. It asserted that the judge was therefore wrong in holding that he could not blame the firm of S.O. Madialo for failing to follow up on the suit. 14.The respondent filed submissions dated 20th May 2026 where he argued that the law on interfering with a discretionary judgment is settled, citing Mbogo vs. Shah and Patel vs. EA Cargo Handling Services Ltd [1974] EA 75. Further, it argued that the learned Judge correctly appreciated the law governing setting aside. He urged that the appellant filed a memorandum of appearance but failed to attend the hearing, though it had been duly served with a hearing notice. 15.The respondent further argued that the learned Judge correctly considered the fact that similar applications had been filed, but more significantly that the appellant had entered into a consent on costs dated 24th October 2019, a clear indication that it was aware of the judgment and proceedings. 16.The respondent posited that mistake of counsel is not an automatic ground for setting aside a regular judgment. Further, the appellant entered appearance and was served with the pleadings and hearing notices, and showed a lack of seriousness in prosecuting its case. Therefore, the argument that it was condemned unheard is factually incorrect. 17.The respondent urged that the appellant has failed to demonstrate any misdirection by the court and further, that the ruling was delivered on sound legal principles and proper evaluation of the facts by the court. He cited Savings and Loans Limited vs. Susan Wanjiru Muritu – Nairobi (Milimani) HCCC No. 397 of 2002 (U.R) on the duty of a litigant to pursue a matter diligently and urged the Court to dismiss the appeal with costs. 18.We have carefully considered the memorandum of appeal, the submissions, as well as the authorities cited by the parties, examined the record of appeal and analyzed the law. As a first appellate court, an appeal is by way of a retrial, and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. [See Gitobu Imanyara & 2 others vs. Attorney General [2016] eKLR]. 19.The germane issue for determination is: whether the learned judge erred in dismissing the application. Setting aside of a judgment is a discretionary order, and therefore, when considering an appeal arising from a decision on setting aside a judgment, certain principles are to be applied by an appellate court. In United India Insurance Co. Ltd vs. East African Underwriters (Kenya) Ltd [1985] KECA 39 (KLR), Madan, J.A (as he then was) had this to say:“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” [Emphasis added] 20.We therefore turn to interrogate the impugned ruling vis-à-vis the record of the court. The facts leading up to the application are that the appellant previously filed an application dated 28th November 2019 through Messrs Omollo & Co. Advocates seeking to set aside the judgment, which application was dismissed on 28th January 2020 for non-attendance. The application that gave rise to the impugned ruling was then filed on 20th July 2020, albeit being dated and signed on 21st December 2019. 21.In the supporting affidavit to the application, the applicant averred that it became aware of the judgment in December 2019. However, through the same firm that it sought to have come on record, M/s. Okong’o & Company Advocates, it entered into a consent on party and party costs on 24th October 2019, two months or thereabout before it states that it became aware of the judgment. 22.The record shows that on 24th June 2020, Ms. Wandago, advocate for the appellant, is recorded saying as follows: “I wish to bring to the attention of the court that we are not properly on record. I do not think we are proper (sic) on record, we pray for a date so that we can proceed and endorse the same”. After several mentions, Mr. Kagunza for the respondent and Ms.Ojwang for the appellant recorded a consent on costs agreed at a sum of Kshs. 130,000. 23.The court considered this sequence of events as follows:“Second by consent note dated 24th October, 2019 the law firm of Okong'o Wandago & Company, the movers of the present application entered into consent on party and party costs with the Claimant's advocate at Kshs. 130,000/=. The question that begs to be answered by the respondent and its Counsel is how it was possible to enter into a consent on party and party costs with regard to a judgement they considered unfairly obtained and wanted set aside.” 24.We note that the learned Judge considered that there were several inconsistencies in the appellant’s account of events and material non-disclosure on its part when seeking the orders to set aside the judgment. All these factors considered, and keeping in mind the principles applicable when considering an appeal against discretionary orders, we see no reason to interfere with the ruling of the learned Judge. 25.We have considered the grounds of appeal and the submissions by the appellant. The appellant attacks the manner in which the learned Judge exercised the discretion to refuse to set aside the ex parte judgment. Given the sequence of the events and the conduct of the appellant, we agree with the learned Judge that the appellant was less than truthful and therefore its application was rightly dismissed. 26.Finally, the principles on when this Court can interfere with the discretionary power of a Judge are well settled, that the Court will not interfere with the exercise of discretion by a lower court unless the exercise of that discretion was erroneous in law (see Mbogo & another vs. Shah (supra). 27.In conclusion, we find that all the grounds of appeal have no merit. Consequently, the appeal is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. M. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR