Edwin Oduor Chacha v Dr. Philisters Onyango & another [2013] KEELRC 131 (KLR)
The bottom line
#Kenya's Employment Court set aside a default judgment against an employer, ruling that a lawyer's forgotten hearing date shouldn't cost a party their day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the failure by counsel to diarize the hearing date constitutes an excusable mistake justifying setting aside of an ex-parte judgment
The court found the failure to diarize the hearing date was an excusable mistake and set aside the judgment of 27th March 2013, on terms that the Claimant receive thrown away costs.
The court applied the established principles for setting aside ex-parte judgments, noting that the discretion exists to relieve against injustice from accident, inadvertence or excusable mistake, but not to assist deliberate obstruction. The court reviewed the record, found no intention to deliberately delay justice, and applied the broad equitable approach that blunders should not deprive a party of a hearing on the merits where costs can compensate.
Whether the Claimant would be prejudiced by the setting aside of the judgment
The court held any prejudice could be compensated by costs, awarding thrown away costs of Shs.10,000/= to the Claimant.
Consistent with the Ringera principles, the court considered whether the affected party could reasonably be compensated by costs for any delay occasioned by setting aside the judgment. Since the Claimant had incurred expenses, the court assessed thrown away costs payable by the Respondent before the hearing date, thereby balancing the Respondent's right to be heard with the Claimant's interest.
Legal principles established
#- Courts have a wide discretion to set aside ex-parte judgments and consequential orders upon such terms as are just, and to deny a person a hearing should be the last resort of the court.
- A mistake by counsel, such as failure to diarize a hearing date, is an excusable mistake or error for which the client should not be made to suffer.
Court orders
#- 1.The application is allowed and the judgment delivered on 27th March 2013 is set aside
- 2.The Respondent shall pay the Claimant thrown away costs assessed at Shs.10,000/= before the date of hearing of the case
- 3.Orders accordingly
- Jurisdiction invoked
- Inherent discretion of the court to set aside ex-parte judgments and consequential orders upon such terms as are just
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Reuben Kenyenya Simeka v Kevin Kepha Nyongesa t/a St. Kevin Hill Schools (Cause 666 of 2016) [2019] KEELRC 1782 (KLR)[2019] KEELRC 1782 (KLR)25 Apr 2019
- Bernard Levoywa v Salina Transporters [2014] KEELRC 1398 (KLR)[2014] KEELRC 1398 (KLR)12 Nov 2014
Cite this brief
#Cite this brief
Caselaw, "Edwin Oduor Chacha v Dr. Philisters Onyango & another [2013] KEELRC 131 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/131/eng@2013-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.