https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1775

Okemwa v Sunshine Occasions Ltd (Appeal E317 of 2025) [2026] KEELRC 1775 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1775 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E317 of 2025 M Mbarũ, J June 29, 2026 Between Jared Isoe Okemwa Appellant and Sunshine Occasions Limited Respondent Judgment 1.This judgment arises from the ruling delivered on 21 August 2021 in Ngong MCELRC No. E006 of 2021. The Appellant, aggrieved by the judgment, has raised 11 grounds of appeal, which can be condensed as that the learned magistrate erred in law and fact by failing to appreciate that the Applicant’s application was a genuine and sincere attempt to seek justice. The same was denied when the said application was dismissed for want of as a result of an excusable mistake and inadvertent error, specifically internet connectivity issues which are beyond the control of the Counsel of the Appellant. That the learned magistrate failed to exercise his unfettered discretion to set aside the ex- parte order of dismissal and reinstate the application dated the 22 October 2024 to do substantive justice to the parties. The trial court failed to appreciate that the Appellant had taken an inordinate delay to prosecute the claim, yet the Appellant’s advocate had provided a plausible explanation for the non-appearance and non-service of the application. 2.The subject of the appeal is a ruling delivered on 21 August 2025 by the learned magistrate when he dismissed the appellant’s application dated 23 December 2024, which had sought to reinstate the application dated 22 October 2024 that had been dismissed on 19 December 2024.The subject application dated 22 October 2024 was seeking:This court be pleased to set aside, suspend and/or stay the dismissal orders of the applicant/claimant’s suit given on 17 October 2024 for want of prosecution and case closed.This court be pleased to allow and grant the applicant/claimant through its advocate on record an opportunity to prosecute its case as well as the application filed herein and dated 6 December 2023, and a determination thereof be made based on the merits of the evidence adduced thereof. 3.The learned magistrate in the ruling delivered on 19 December 2024 dismissed the application for non-attendance. 4.Upon dismissal, the appellant filed an application, subject to this appeal, dated 23 December 2024. The appellant is seeking the following:This court be pleased to direct that the claimant’s Notice of Motion application dated 22 October 2024 be reinstated and be ready to be set down for hearing inter partes.This court is and is hereby pleased to give an opportunity and allow the applicant/claimant, through its advocate on record, to prosecute its application dated 22 October 2024. A determination thereof shall be made based on the merits. 5.The basis of the application dated 23 December 2024 is that, when the matter came before the court on 19 December 2024, the appellant's counsel had internet connectivity, which interfered with the call and caused it to drop. 6.The basis of the application dated 22 October 2024 was that on 17 October 2024, when the matter came up for hearing before the trial court, counsel experienced internet connectivity challenges and the call dropped. The court dismissed the suit. 7.In the ruling at issue in this appeal, the learned magistrate considered these facts. 8.Indeed, the record confirms that the appellant confirmed the hearing date on 17 October 2024 and on 19 December 2024. On both occasions, there was no attendance. The appellant had cited connectivity challenges as the reason for non-attendance. 9.The appellant and his counsel support both applications. The cause for dismissal of the suit and application is the same. Connectivity challenges. 10.The appellant was represented by his advocate at all material times. Counsel is aware that the fact of virtual access to court is one mode of access to justice, and for ease of incurring unnecessary costs. Where the suit was dismissed on 19 December 2024 due to connectivity challenges, upon filing the application dated 23 December 2024, due diligence was necessary. Failure to attend and then assert that this was due to connectivity challenges and the call dropped is a failure to render a proper account. 11.Moving the court with applications and counter-applications over the same subject does not serve justice. This is an abuse of the court process. 12.From the attached proceedings, the substantive claim was listed for mention of the pre-trial directions on 18 November 2021. Both parties attended and confirmed that the matter was ready for hearing. Indeed, the appellant attended court on 24 February 2022. 13.On 4 April 2024, the parties attended the call over. However, when the matter was called for allocation of a hearing date, the appellant was absent. The learned magistrate allocated a hearing date for 18 July 2024. Unfortunately, on the due date, the learned magistrate was on transfer, and the hearing was rescheduled for 17 October 2024. 14.On this date, 17 October 2024, the applicant was absent. The suit was dismissed for want of prosecution. 15.Looking at the history of the matter, the appellant has not been diligent. There are several notices. The ones on 17 October 2024 and 19 December 2024 were not set in isolation. 16.Fundamentally, the record is incomplete for this appeal. The court has had to take the initiative to seek the trial court file to ascertain the record. 17.Under Rule 12 and 15 of the Employment and Labour Relations Court (Procedure) Rules, an incomplete Record of Appeal automatically renders an appeal invalid. The proceedings subject to the proceedings on 21 August 2025 are not part of the appeal record. Such a lapse renders the appeal fatally defective. 18.The appeal herein is without merit and is dismissed. The orders of the learned magistrate on 21 August 2025, dismissing the application dated 23 December 2024 in Ngong CMELRC No. E006 of 2021 is confirmed. Costs to the respondent. DELIVERED IN OPEN COURT THIS 29TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………………… and………………….…………………………..