Bakeville Limited v Omar (Appeal E017 of 2024) [2025] KEELRC 2936 (KLR) (29 October 2025) (Judgment)

Key Facts

Issues

• The Appellant asserts that they were prepared with all necessary documents but faced technical service and exchange issues. The Magistrate's ruling to close the case ignored this preparedness, which the Appellant claims violates their right to a fair hearing.
• The Appellant claims the Magistrate's denial of a hearing breached Article 159 of the Constitution, which mandates that no court shall drive a litigant from the seat of justice without a hearing. This issue centers on the constitutional right to a fair and just determination.
• The Appellant contends that the Magistrate's decision to deny a hearing was based on a curable technicality, even though the Appellant was present in court on the hearing date. This ground asserts a violation of the right to be heard under the Constitution.
• An ex parte judgment was entered against the Appellant despite their filing a memorandum of appearance with the Respondent's advocate. This ground argues that the Magistrate proceeded on incorrect principles by not considering the Appellant's presence in the proceedings.
• The Appellant argues that the Magistrate ignored the principles and authorities from cases such as Selle & another v Associated Motor Boat Co. [1968] EA 123 and others, which were cited in support of the application. This ground challenges the court's failure to apply the relevant legal framework.
• The Appellant's delay in filing submissions was due to the Respondent's failure to submit their replying affidavit. The Magistrate did not consider this circumstance, leading to the dismissal of the application. The Appellant argues that the delay was not their fault and should have been excused.
• The Appellant's application was dismissed because the Respondent did not file a replying affidavit as required by the court's March 14, 2024 directions. Despite the application being unopposed, the Magistrate's ruling focused on this procedural failure, which the Appellant argues was an incorrect application of the law.
• The Appellant argues that the Magistrate failed to adequately evaluate the evidence and exhibits tendered, resulting in a decision that was not sustainable in law. This ground challenges the thoroughness of the court's review of the case's factual basis.
• The Appellant submitted that the Magistrate failed to consider the Appellant's submissions with respect to the application dated 30th January 2024, despite the said submissions having been filed. This ground challenges the court's dismissal of the application on the basis of non-consideration, citing the need for the court to exercise discretion to meet the ends of justice.

Holdings

Remedies

• The appeal was dismissed with costs awarded to the Respondent by the Employment and Labour Relations Court at Kisumu on 29th October 2025.
• The Court ordered the release of a security deposit of Kshs. 456,000 held by the Court following the dismissal of the appeal.

Legal Principles

• The Appellant argued that closure of its case without consideration of evidence offended the principles of natural justice, citing Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 41 (KLR). The court emphasized the requirement to avoid driving litigants from the seat of justice without a hearing.
• The Respondent asserted the Appellant's application was res judicata, as the trial court had previously denied an oral application seeking similar relief. The court found this argument relevant to the matter's finality.
• The Respondent cited cases emphasizing obedience to court orders as essential to preserving the rule of law, including Republic v County Chief Officer, Finance & Economic Planning Nairobi City Ex-parte Stanley Muturi [2018] KEHC 8748 (KLR) and Econet Wireless Kenya Ltd v Minister for Information & Communication [2005] 1 KLR 828.

Precedent Name

• Patriotic Guards Ltd v James Kipchirchir Sambu
• Susan Munyi v Keshar Shiani
• Republic v County Chief Officer, Finance & Economic Planning Nairobi City Ex-parte Stanley Muturi
• Selle & another v Associated Motor Boat Co.
• Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others
• A.B & R.B Civil Application No. 4 of 2016
• Alois Oceano D'sumba v Rajkant Narshi Shah & another
• Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
• Phillip Chemwolo & another v Augustine Kubede
• David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'a
• Railway Corporation v E.A Road Services Limited
• Menze and others v Matata

Cited Statute

• Constitution of Kenya
• Civil Procedure Rules

Judge Name

Passage Text

• The failure to file submissions on time as directed by the Learned Magistrate was consequential and this Court sees no need to review point by point the failure by the Appellant to abide by Court directions which led to the motion in the Trial Court being decided against the desire of the Appellant. As I find the entire appeal to this Court without any merit I dismiss the appeal with costs to the Respondent. I affirm the findings of the Lower Court which were not made in any error and where no caprice or misdirection was evident. Appeal is accordingly dismissed with costs to the Respondent. The security deposit of Kshs. 456,000/- held by the Court is hereby released.
• The Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be...
• It is settled law that whenever a Court is called upon to exercise its discretion, it must do so judiciously... judicious because the discretion to be exercised is judicial power derived from the law and as opposed to judge's private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by Court to do real and substantial justice to the parties in the suit.