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ELRCDismissedNot stated in judgment· [2013] KEELRC 48 (KLR)

Osborne Ashiono Mutumira v Ethiopian Airlines (S.C) Limited [2013] KEELRC 48 (KLR)

Industrial Court (Employment and Labour Relations Court)
6 November 2013
MNMathews N. Nduma
684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to undo a judgment won in a party's absence because the claimant's side repeatedly failed to attend hearings.

What this practically means

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Executive summary

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The Claimant/Applicant applied for review (treated by the court as an application to set aside) of the judgment of Hon. Justice Nderi Nduma delivered on 20th May, 2013, which dismissed the Claimant's substantive claim with costs and allowed the Respondent's counterclaim, awarding KShs 271,809 with costs of the suit. The judgment of 20th May, 2013 was reached ex parte after the Claimant's advocate, Mr. Ashimosi, failed to attend the hearing of 8th and 9th May, 2013 despite service on his law firm; he conceded service but said he had misdiarised the matter. The court traced the matter's history: an earlier ex parte award following non-appearance, a restart of the hearing, a consented date on 5th November, 2012 that the Claimant's counsel failed to pursue, and the Respondent incurring immense expenses bringing witnesses from outside the country. The court held that the Claimant's interest in prosecuting the matter was wanting - it moved with speed only once an ex parte award had been granted - and that it was not convinced of the Claimant's bona fides. Guided by the Court of Appeal decision in Mbogo and Another v. Shah (Civil Application No. 5 of 1967), which approved the statement of Harris J. in Kimani v. Mc Connell [1966] E.A. 547, the court declined to exercise its discretion in favour of the Claimant. The application was dismissed with costs to the Respondent, leaving the judgment of 20th May, 2013, including the counterclaim award, intact.

Key legal issues

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Exercise of discretion to set aside an ex parte judgment

Holding

The discretion was refused because the Claimant's advocate had repeatedly failed to attend court despite proper service, and the application lacked bona fides

Reasoning

The matter had a history of non-attendance by the Claimant's side: the advocate misdiarised the hearing date of 8th and 9th May, 2013 despite service on his firm, and had earlier failed to pursue a consented date of 5th November, 2012. The court found the Claimant's interest in prosecution of the matter wanting, animated only when an ex parte award went against them, and guided by Mbogo v Shah refused to exercise its discretion in their favour.

p. 2

Legal principles established

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  • A court may properly refuse to set aside an ex parte judgment where the applicant's advocate, though served, neglected to attend, and the applicant lacks bona fides

Court orders

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  1. 1.The application to set aside the judgment delivered on 20th May, 2013 is dismissed
  2. 2.Costs of the application to be paid to the Respondent

Authorities

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Cases cited (2)

  • Mbogo and Another vs. Shah
    Civil application No. 5 of 1967
  • Kimani v Mc Connel
    [1966] E.A. 547
Jurisdiction invoked
Inherent discretionary power of the court to set aside/review its ex parte judgment (no specific provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Osborne Ashiono Mutumira v Ethiopian Airlines (S.C) Limited [2013] KEELRC 48 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/48/eng@2013-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.