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Court of AppealPartially AllowedCivil Application No. 25 of 2020· [2024] KECA 1030 (KLR)
Salaries and Remuneration Commission v Others
Court of Appeal of Kenya
12 April 2024
2,748 words in judgment
AI-assisted case brief
·~11 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal restored a case the Salaries and Remuneration Commission missed because its lawyer never told it about the hearing date.
What this practically means
#Executive summary
#The Salaries and Remuneration Commission moved the Court of Appeal at Nyeri under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 42(1), 49(1) and 56(3) of the Court of Appeal Rules, 2010, seeking stay of a ruling of 19th March, 2021 in Civil Application No. 25 of 2020 and an order that the respondents' motion be heard de novo. The 19th March, 2021 ruling by Koome, Warsame and Kiage JJ.A. had allowed the respondents' striking-out application in the Commission's absence, after its then advocate, Ms Rosalie Wafula, failed to respond to or attend the hearing of the application. The Commission learned of the ruling only on 30th March, 2021 upon receipt of the respondents' letter demanding implementation of the Employment and Labour Relations Court judgment of 4th June, 2018, and asserted that it had already lodged Civil Appeal No. 320 of 2019 and obtained a Certificate of Delay. The respondents opposed, contending the application was vexatious and that the Commission sought to benefit from its own negligence. The Court framed a single question: whether the applicant was prevented by sufficient cause from appearing when the application was called on. Applying the settled principle that counsel's mistakes should not be visited on the client, as stated in Belinda Murai v Amos Wainaina and Philip Keipto Chemwolo v Augustine Kubende, the Court held the advocate's non-communication amounted to sufficient cause. It allowed the application, set aside the 19th March, 2021 order, restored the respondents' application for hearing on a priority basis with leave to file responses and submissions, and made no orders as to costs. This ruling binds lower courts on the restoration principle. The Commission's underlying appeal on county assemblies grading structures remains to be heard on the merits.
Key legal issues
#01
Whether non-communication of a hearing date by an advocate constitutes sufficient cause for restoration of an application determined in the party's absence
Holding
Yes. The Court was satisfied that the applicant's failure to respond to and attend the hearing of the respondents' application was mistakenly due to its then advocate's non-communication, which amounted to sufficient cause under Rule 58(3).
Reasoning
The Court applied the established principle that counsel's mistakes should not be visited upon the client, relying on Belinda Murai v Amos Wainaina and Philip Keipto Chemwolo v Augustine Kubende. It found the applicant had already lodged its appeal and obtained a Certificate of Delay, demonstrating a valid defence it was prevented from presenting. Justice dictated that the application be restored rather than the applicant suffer the penalty of its advocate's inadvertence.
p. 5
Legal principles established
#- A party in whose absence an application was determined may have it restored for rehearing if it shows it was prevented by sufficient cause from appearing when the application was called on for hearing
- A litigant should not be penalised for the mistakes or blunders of counsel where the interests of justice dictate rectification
Court orders
#- 1.The application dated 7th April, 2021 is allowed
- 2.The order of the Court made on 19th March, 2021 allowing the respondents' application dated 1st March, 2021 is set aside
- 3.The respondents' application dated 1st March, 2021 is restored for hearing
- 4.The applicant has leave to file its response within fourteen days of the Court's orders, with corresponding leave to the respondents to file a supplementary affidavit
- 5.The parties will then exchange written submissions
- 6.The restored application, having been certified urgent, shall be fixed for hearing in the registry on a priority basis
- 7.No orders as to costs
- On appeal from
- Court of Appeal of Kenya, Nyeri
- Civil Application No. 25 of 2020 Kamau Aidi & 47 others v Salaries and Remuneration Commission
- Jurisdiction invoked
- Section 3A and 3B of the Appellate Jurisdiction Act; Rules 42(1), 49(1) and 56(3) of the Court of Appeal Rules, 2010 (Rules 44(1), 51(1) and 58(3) of the Court of Appeal Rules, 2022); Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salaries and Remuneration Commission v Others", Case Analysis (2024). Civil Application No. 25 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1030/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.