1. Through the Memorandum of Appeal dated 5th September, 2024 the Appellant appeals against the Judgement of Hon. P.K Rotich delivered on 29th September, 2023.
2. The Appeal was based on the grounds that: -
(insert 1 here)
3. The Appellant therefore prayed that the Appeal be allowed and that the Judgment of the Hon. P.K Rotich delivered on 29th September, 2023 and consequential orders be set aside and that the appellant be awarded the costs of the appeal.
4. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
5. The Appellant’s Advocate Ms. Achieng’ submitted among others that the trial magistrate erred in law and fact by failing to consider evidence tendered by the appellant on the reasons for terminating the respondent’s employment. According to Counsel, at page 8 of the trial court’s judgment it acknowledged the appellant’s averment that the respondent was paid all his dues and had a ling history of disciplinary issues which eventually led to his dismissal. According to counsel, the respondent was found asleep on two occasions by his supervisor and was issued with a 1st warning letter dated 15th October, 2007 and another on 29th November, 2007 and informed that a repeat of the same would lead to summary dismissal. The respondent acknowledged this and wrote an apology letter dated 6th December, 2007 to the respondent. In February, 2009, the claimant was once again issued with a warning letter over reporting to work late and failed to give a convincing reason.
6. Counsel further submitted that the trial court misdirected self by failing to set aside the ex parte hearing and totally disregarded the respondent’s right to defend itself. According to counsel on 12th July, 2023 when the matter came up to confirm filing of submissions, counsel for the respondent indicated that he intended to file an application to set aside the ex parte proceeding however the court still proceeded to fix the matter for judgment on 8th September, 2023. The respondent filed the said application but the same was dismissed for want of prosecution when it came up for hearing. Counsel submitted that dismissal of a suit was draconian as it drove the litigant away from the seat of justice. In that regard counsel relied on the case of John Nahashon Mwangi v. KFB Ltd and Mandeep Chauhan v. KNH & 2 Others 2013 eKLR.
7. Concerning overtime and public holidays, counsel submitted that the trial court failed to acknowledge the appellant’s evidence that the respondent’s salary was all inclusive. In this regard counsel relied on the case of Joseph Sani v. Hipprora Business Solutions [2017] eKLR and Rogoli Ole Mandagi v. General Cargo Services Ltd [2016] eKLR.
8. Ms. Achieng’ further submitted that the trial court erred in awarding the respondent compensation for unfair termination of service yet the he had a long history of disciplinary issues. It was for these reasons that the respondent was issued with a show cause letter and eventually summary dismissal. According to Counsel, the appellant followed due procedure in terminating the service of the respondent.
RESPONDENT’S SUBMISSION
9. Counsel for the respondent Mr. Onyari on his part submitted that the appeal was incompetent since the appellant did not include in the record, the decree. This according to counsel was contrary to Rule 15(1) of the Rules of the Court. Counsel further relies on the. Cases of Bwana Mohammed Bwana v. Silvano Buko Bonaya & 2 Others [2015] eKLR and Chege v. Suleiman [1988] eKLR.
10. On the issue whether the issue whether the trial court failed to set aside the ex parte hearing and disregarded the appellant’s right to defend self, counsel submitted that on March, 2023 the appellant’s counsel was served with a hearing notice which she acknowledged. On 23rd March, 2023 the respondent’s counsel filed an affidavit of service and the court being satisfied that the service was proper, proceeded to hear the matter in absence of the appellant. On 11th July, 2023 the appellant filed an application to set aside the ex parte hearing and reopen the case. The application was fixed for hearing inter partes on 5th September, 2023. On the said date, counsel for the appellant failed to attend court and the respondent urged the court to dismiss the application which was done.
11. Counsel further submitted that the respondent having filed submissions on the main suit, the trial court fixed the matter for judgment on 28th September, 2023. The appellant was served with the judgment notice. Mr. Onyari submitted that despite being served with the judgment notice and the dismissal of the application on 5th September, 2023 the appellant did not bother to either file an application to reinstate the dismissed application or appeal the order of dismissal. The appellant only waited for the trial court to deliver its judgment to appeal alleging the trial court failed to set aside the ex parte judgment. According to counsel the appellant failed to prosecute its application for setting aside the ex parte hearing hence cannot blame the trial court.
12. On the issue whether the trial court failed to consider the evidence tendered by the appellant, counsel submitted that the appellant having failed to attend the hearing, there was no evidence tendered. In this regard counsel relied on the case of Motex Knitwear Ltd v. Gopitex Knitwear Mills Ltd HCCC No. 548 of 2002 and Trust Bank Ltd v. Paramount Universal Bank Ltd & 2 Others HCCC No. 1243 of 2001. According to counsel, the failure by the appellant to adduce any evidence meant the evidence adduced by the respondent went uncontroverted.
DETERMINATION.
13. The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and submissions filed by the Appellant’s counsel herein and reiterate that principles which guide this court in an appeal from a trial court are now well settled. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:-
An appeal to this court from a trial by the High Court is by way of 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.
14. The Judgment of the trial court was entered against the Appellant after a trial ex parte. The trial court was persuaded that the appellant was properly served but failed to attend court either by self or counsel. There were attempts by the appellant’s counsel to have the ex parte hearing set aside but this too ran into problems when on the date scheduled for the hearing of the application to set aside the ex parte hearing there was no appearance either by counsel or the appellant.
15. The appellant contends among others, that the trial court erred in law by failing to consider the evidence tendered by the appellant and that the trial court misdirected itself by failing to set aside the ex parte hearing. The hearing proceeded ex parte it is therefore not true that the trial court failed to consider the evidence tendered by the appellant as none was tendered. It may well be that the appellant filed response to the claim and evidence in support of their case but the appellant having failed to attend the hearing and lead evidence in support of their defence, there was no evidence for the trial court to consider. Pleadings and documents filed by a party do not automatically become evidence unless they are produced by a party submitting them.
16. On the issue of failing to set aside the ex parte hearing, the appellant had the opportunity to persuade the trial court to do so when they filed the application for setting aside the same. They failed to attend court once again on 5th September, 2023 when their application came up for inter partes hearing leading to the dismissal of the same for non-attendance. The appellant thereafter never moved the trial court for reinstatement of their dismissed application. From the foregoing, the issues raised in this appeal are factually not correct. The trial court was therefore justified in reaching the judgment it reached.
17. The court has further noted that the record of appeal does not contain a copy of the decree of the lower court as required by Rule 15(1) of the Court Rules. Counsel for the respondent was therefore right to submit that without the decree, the appeal was incompetent. A decree is the seat of an appeal. It is the formal expression of what a court has decided.
18. From the foregoing, the Court finds and holds that there is no competent appeal before it and further that the appeal as filed has no merit for the reason that the appellant did not act diligently in defending the claim before the trial court and therefore cannot fault the finding of the trial court.
19. The appeal is therefore dismissed with costs.
20. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division