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ELRCAllowedNot stated in the judgment· [2013] KEELRC 131 (KLR)

Edwin Oduor Chacha v Dr. Philisters Onyango & another [2013] KEELRC 131 (KLR)

Industrial Court (Employment and Labour Relations Court)
25 July 2013
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Industrial Court on a Notice of Motion dated 14th April 2013 filed by the Respondent seeking a temporary stay of execution, and setting aside of the judgment delivered on 27th March 2013 and the ex-parte proceedings of 18th February 2013, with consequential orders. The application was supported by an affidavit of Morris M. Karigi, Advocate for the Respondent, who deponed that his failure to attend court was due to failure to diarize the hearing date, that his firm was not served with a judgment notice, and that his client should not suffer for counsel's mistake. The Claimant, Edwin Oduor Chacha, opposed the application in a Replying Affidavit, portraying the Respondent as an indolent litigant whose advocates had failed to attend court on multiple occasions and who lacked a good defence. In a ruling delivered on 25th July 2013, Lady Justice Maureen Onyango applied the well-established principles for setting aside ex-parte judgments, citing the decision of Ringera J in Remco Limited v Mistry Jadua Parbat & Co. Ltd and the decision of Apaloo J.A. in Philip Chemolo v Augustine Kubende. She found the failure by counsel to diarize the hearing date to be an excusable mistake for which the client should not suffer, and found no deliberate intention to delay justice. She allowed the application and set aside the judgment of 27th March 2013, conditional upon the Respondent paying the Claimant thrown away costs assessed at Shs.10,000/= before the date of hearing of the case.

Key legal issues

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01

Whether the failure by counsel to diarize the hearing date constitutes an excusable mistake justifying setting aside of an ex-parte judgment

Holding

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.

Reasoning

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.

p. 2
02

Whether the Claimant would be prejudiced by the setting aside of the judgment

Holding

The court held any prejudice could be compensated by costs, awarding thrown away costs of Shs.10,000/= to the Claimant.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application is allowed and the judgment delivered on 27th March 2013 is set aside
  2. 2.The Respondent shall pay the Claimant thrown away costs assessed at Shs.10,000/= before the date of hearing of the case
  3. 3.Orders accordingly

Authorities

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Cases cited (2)

  • REMCO LIMITED V MISTRY JADUA PARBAT & CO. LTD & 2 OTHERS
  • PHILIP CHEMOLO & ANOTHER V AUGUSTINE KUBENDE
    (1982-88) I KAR 1036
Jurisdiction invoked
Inherent discretion of the court to set aside ex-parte judgments and consequential orders upon such terms as are just

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.