https://new.kenyalaw.org/akn/ke/judgment/keca/2026/925

Ndaje & 4 others v Milly Fruits Processing Ltd (Civil Appeal E074 of 2023) [2026] KECA 925 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 925 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E074 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Anthony Kiti Ndaje 1st Appellant Mohamed Abdalla 2nd Appellant Anderson K Tsuma 3rd Appellant Athman Abdalla 4th Appellant John Mambo Kirao 5th Appellant and Milly Fruits Processing Limited Respondent (Being an appeal against the Ruling and Orders of the Employment and Labour Relations Court of Kenya at Mombasa (A. K. Nzei, J.) dated 10th November 2022 in ELRC Cause No. 651 of 2015 Cause 651 of 2015 ) Judgment 1.The genesis of the interlocutory appeal before us is the appellants’ suit against the respondent (Milly Fruits Processing Limited) in the Employment and Labour Relations Court (the ELRC) at Mombasa in ELRC Cause No. 651 of 2015 vide a statement of claim dated 10th August 2015 and amended on 8th July 2016. In their joint claim, the appellants (Anthony Kiti Ndaje – the 1st appellant), Mohamed Abdalla – the 2nd appellant, Anderson K. Tsuma – the 3rdappellant, Athman Abdalla – the 4th appellant and John Mambo Kirao – the 5th appellant) sought: a declaration that the termination of their employment sometime in November 2014 was unlawful; Kshs. 1,722, 750 on account of leave pay for 3 years, salary in lieu of notice, compensation for unfair termination, house allowance and terminal benefits on redundancy; costs of and incidental to their claim; and interest at court rates on the sum of Kshs. 1,722, 750 and on costs. 2.In its undated response to the appellants’ statement of claim filed on 7th October 2015, the respondent denied the appellants’ claim that their employment was unfairly terminated. According to the respondent, the appellants’ termination was occasioned by their conduct in absconding and deserting duty, failure to adhere to the respondent’s directives and instructions, and negligence in performance of their respective duties. 3.When the cause came up for hearing on 29th June 2016, it was adjourned to allow time for the appellants to amend their statement of claim, which they did on 8th July 2016. Notably, the respondent did not file any amended response thereto. 4.It is instructive that, on the date the cause came up for hearing, none of the appellants or their counsel appeared. Be that as it may, learned counsel for the respondent, Mr. Chamwada, who was in attendance, informed the court that a Mr. Odhiambo for the claimants had called him and indicated that they intended to amend the claim, to which counsel for the respondent was not opposed. 5.Accordingly, the cause was scheduled for mention on 27th July 2016 when none of the parties was in attendance, thereby prompting the court to stand it over generally. 6.When the matter came up for further mention on 7th February 2019, four of the appellants were in attendance as well as counsel for the respondent, Ms. Mbinya, holding brief for Mr. Omwenga. The learned Judge (L. Ndolo, J.) fixed the cause for hearing on 24th October 2019. 7.On the date scheduled for hearing, Mr. Odhiambo appeared for the appellants and informed the court that they had been served with a notice of change of advocates on the part of counsel for the respondent, and that the hearing could not proceed despite the attendance by the outgoing counsel for the respondent, Ms. Abedi, holding brief for Mr. Omwenga. 8.When the cause came up for mention on 10th January 2019, a further mention was scheduled for 21st January 2020 in the presence of Mr. Obedi, holding brief for Mr. Omwenga, but in the absence of counsel for the respondent. 9.On mention on 21st January 2020, only the 3rd appellant was present. There was no appearance for the respondent. 10.On further mention on 24th February 2020, Mr. Odhiambo appeared for the appellants in the absence of counsel for the respondent. Accordingly, the court fixed the cause for hearing on 23rd September 2020 when Mr. Odhiambo appeared for the appellants while Mr. Olwade appeared for the respondent. However, the cause was yet again adjourned to allow Mr. Olwade time to file “supplementary documents”. 11.On the next hearing date scheduled for 24th November 2020, the respondent’s counsel was not prepared to proceed on account of alleged ill health. Neither was there any representation for the appellants, which occasioned yet another adjournment to 13th May 2021 when a new date was set for hearing on 1st December 2021 on account of non-attendance on the part of counsel for the appellants. 12.On 1st December 2021, Mr. Odhiambo was present for the appellants while Ms. Kerubo appeared for the respondent and informed the court that Mr. Omwenga was before the Court of Appeal, and that, therefore, the hearing could not proceed. Consequently, the learned Judge (A. M. K. Nzei, J.) granted the last adjournment and directed that the cause proceeds to hearing on 22nd March 2022. 13.On 22nd March 2022, the cause came up for hearing as directed. In attendance was Ms. Kerubo holding brief for Mr. Omwenga for the respondent while there was no attendance by counsel for the appellants. Neither were the appellants or any of them present. Consequently, the learned Judge (A. M. K. Nzei, J.) dismissed the appellants’ cause for non-attendance. 14.The dismissal of their cause prompted the appellants to file a Notice of Motion dated 14th June 2022 seeking orders to “... set aside the orders made on 23rd March 2022 dismissing the claimants’ suit”; and costs of the application. 15.The appellants’ Motion was supported by the annexed affidavit of their counsel on record, Mr. Samuel Odhiambo Eleakim, sworn on 14th June 2022 essentially deposing to the grounds on which it was anchored, namely: that he did not attend court on time on 22nd March 2022 as he was before Hon. Byram Ongaya, J. for mention of ELRC Cause Nos. 417 of 2015 and 209 of 2016; that the appellants were in attendance in his office awaiting indication of the time the hearing would proceed; that the case had been adjourned mostly at the respondent’s instance; that failure to attend court was inadvertent and excusable; and that the respondents stood to suffer no prejudice if the orders sought were granted. In addition, Mr. Odhiambo blamed counsel for the respondent for failing to request the court to wait for him. 16.In response, counsel for the respondent, Ms. Eddah Kerubo, filed her replying affidavit sworn on 28th June 2022 stating that the applicants failed to annex the ELRC causelist showing the matters listed before Hon. Byram Ongaya or a copy of the extract of the proceedings thereof; that none of the appellants swore an affidavit to show that they were in attendance and ready to proceed. She urged the court to dismiss the Motion. 17.In its ruling dated 10th November 2022, the ELRC (A. M. K. Nzei, J.) dismissed the appellants’ Motion seeking to set aside the orders of 23rd March 2022. As the learned Judge observed, none of the five claimants, nor their counsel, was present in court on 22nd March 2022 when the suit was called out for hearing, and no explanation was proffered for their absence. In those circumstances, the respondent’s counsel was well within his right to move the court for dismissal, and the suit was accordingly dismissed for non-attendance on the part of the claimants. 18.The learned Judge further noted that the claimants had failed to advance any satisfactory reason for their absence on the material day. Moreover, although the applicants sought to set aside what they described as a dismissal order dated 23rd March 2022, no such order existed on record. 19.Disatisfied with the learned Judge’s decision, the appellants moved to this Court on appeal on the following grounds:“ 1.The ruling of the Court does not satisfy the mandatory requirements stipulated in the Civil Procedure Rules. 2.The learned Judge erred in law and in fact by failing to properly consider the Appellants’ application to reinstate the claim. 3.The learned Judge erred in law and in fact by failing to properly evaluate the evidence and submissions filed by both parties. 4.The learned Judge erred in law and in fact by dismissing the Appellants’ application.” 20.Counsel for the appellants, M/s. Odhiambo S. E., filed written submissions dated 7th August 2025 essentially recasting the background as well as the grounds on which the appellants’ Motion was made, and as more substantially deposed to in his affidavit in support of the Motion to which the impugned ruling relates. Cousnel urged us to allow the appeal. 20.In rebuttal, counsel for the respondent, M/s. Mogaka, Omwenga & Mabeya, filed written submissions and a list and summary of authorities dated 11th September 2025 citing the cases of Daqare Transporter Limited v Chevron Kenya Ltd & Another [2015] KEHC 6038 (KLR); and Cecilia Wanja Waweru v Jackson Wainaina Muiruri & Another [2013] KEHC 1540 (KLR), which recognised this Court’s power to interfere with the exercise of the discretion of a single Judge as affirmed in Mbogo & Another v Shah (1968) EA 93. 20.The only issue that falls to be determined is whether the learned Judge was at fault in dismissing the appellants’ Motion for orders to set aside the impugned ruling dismissing their suit for non-attendance pursuant to rule 22(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016; and in declining to reinstate their suit as prayed. 20.Rule 22(2) of the 2016 Act reads:(1)… ….(2)subject to paragraph (1), where a party fails to attend Court on the day fixed for hearing, the Court may dismiss the suit except for good reason to be recorded. 20.We hasten to observe that a cause filed in 2015 and remaining unheard on its merits as of November 2022 constitutes a delay of approximately seven years — a period which this Court on appeal is entitled to regard as, on its face, inordinate, requiring compelling justification from the claimants. In the absence of satisfactory or credible explanation for the prolonged inactivity, the trial court would have had no reason to excuse the delay, consistent with the principle enunciated by the Court of Appeal in Vijay Morjaria v Nansi Morjaria & Another [2000] eKLR, that an applicant seeking indulgence must demonstrate blamelessness and good faith. 20.The Employment and Labour Relations Court, consistent with the constitutional mandate of Article 159(2) (b) and (d) of the Constitution, is enjoined to resolve disputes without undue delay and to eschew undue technicalities. Permitting perpetually dormant suits to subsist as was the case here runs counter to that mandate. For this reason alone, the ELRC was justified in dismissing the Motion to set aside its Ruling and reinstate the suit. 20.The ratio decidendi in the impugned ruling is that, where claimants fail to prosecute their cause with diligence over an inordinate period, offering no credible or sufficient explanation for the prolonged inactivity, the court is entitled, and indeed obligated by the overriding objective under Article 159(2) of the Constitution, to dismiss the suit in order to protect the integrity of the judicial process and vindicate the respondent's legitimate interest in the finality of proceedings. That is precisely what the learned Judge did in exercise of her discretionary powers. To our mind, she was not at fault in doing so and, accordingly, we find no reason to interfere with her decision to decline the orders sought to set aside her Ruling. 20.In determining whether we have good reason to disturb the learned Judge’s discretionary decision, we take to mind the decision of the Supreme Court in Joseph Lendrix Waswa v Republic [2020] eKLR where the Court thus pronounced itself succinctly on an appellate court’s power to disturb a discretionary decision of a single Judge:“72. Discretionary pronouncements of a Court, as we have stated in several decisions, form an integral part of a Court’s jurisdiction and should not be interfered with unless an Appellate Court is satisfied that the exercise of that discretion was improper and, therefore, warrants interference. So, for instance, a Court must be satisfied that the Judge in exercising discretion misdirected herself or himself and has been clearly wrong in the exercise of the discretion and that as a result, there has been injustice.” 20.In the same vein, Madan, JA. (as he then was) had this to say in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (supra):“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.A close scrutiny of the appellants’ case does not disclose the presence of any of the grounds underscored in the afore-cited case of United India Insurance Co. Ltd vs. East African Underwriters (Kenya) Ltd (supra) to justify interference with the learned Judge’s discretionary decision. 20.The doctrine of judicial discretion as defined in De Smith, Stanley A., and J. M. Evans. “De Smith's Judicial Review of Administrative Action”, 4th Edition. London: Stevens and Sons Ltd., 1980.“is the legal concept of discretion which implies power to make a choice between alternative courses of action. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no uniquely right answer to his problem.” 20.Keith Hawkins in “The Use of Discretion”, Oxford University Press UK (1992, 11, 11) it was observed as follows:“discretionary decisions are those where the Judge has an area of autonomy free from strict legal rules, in which the Judge can exercise his or her Judgment in relation to the particular circumstances of the case. Discretion is the space between legal rules in which legal actors may exercise a choice in speaking of autonomy and choice, it must be acknowledged that the exercise of discretion is usually limited by guidelines or principles or by reference to a list of relevant factors to be considered. While discretion permeates both the Common Law and many, if not most, statutory instruments discretionary powers are never absolute and must also be exercised within, a broader legal and social context.” 20.At the risk of an overkill, we also take to mind Black’s Law Dictionary (Tenth Edition), which defines judicial discretion as:“The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.” (See United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A and Joseph Lendrix Waswa v Republic [2020] eKLR) 20.Having carefully considered the record of appeal, the grounds on which it was anchored, the impugned ruling, the rival submissions of respective counsel, the afore-cited authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed with costs to the respondent. Consequently, the ruling and order of the ELRC (A. M. K. Nzei, J.) dated 10th November 2022 be and is hereby upheld. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR..................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb...................................JUDGE OF APPEALG. W. NGENYE-MACHARIA..................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR