Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in judgment· [2013] KEELRC 568 (KLR)

Francis Mwaura Mboche v Nacico Co-operative Savings & Credit Society [2013] KEELRC 568 (KLR)

Industrial Court of Kenya
21 June 2013
JRJames Rika
580 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court set aside the dismissal of an employer's jurisdictional challenge, ruling a lawyer's honest diary error was an excusable mistake, not negligence.

What this practically means

#

Executive summary

#
The Industrial Court at Nairobi, per James Rika, Judge, dealt with an application dated 12th March 2012 by the Respondent seeking variation and/or setting aside of an order dismissing its preliminary challenge — an objection under Section 90 of the Employment Act 2007 questioning the validity of the claim and the Court's jurisdiction — for non-prosecution. The preliminary challenge had been scheduled for hearing on 6th March 2012; on that date the Respondent's Advocates neither attended nor communicated with the Court, and the Court dismissed the challenge on the Claimant's application. The Respondent's Advocate, Ms. Ochieng, explained by affidavit that she erroneously recorded 8th March 2012 as the hearing date in her diary and communicated that wrong date to her client, submitting the error was genuine and human, and that the challenge concerned a fundamental issue of jurisdiction. The Claimant countered that the Advocate displayed professional negligence and her client should pursue any claim against her, not the Claimant, noting she was the same Advocate who took the hearing date. The Court found the explanation satisfactory, holding the mistake excusable. It further held the preliminary challenge raised a critical point of law which could be raised even at the substantive hearing or by the Court on its own motion, and that no finding had been made on the fundamental issue. In the interests of fair administration of justice, the Court allowed the application, awarded the Claimant costs of Kshs.5,000 payable before further audience, and directed the parties to agree a suitable date for hearing of the preliminary challenge. Dated and delivered at Nairobi on 21st June 2013.

Key legal issues

#
01

Excusable mistake by counsel as ground for setting aside dismissal for non-prosecution

Holding

The Court found the Advocate's explanation satisfactory — she made a genuine human error in recording 8th March 2012 instead of 6th March 2012, communicated the wrong date to her client, and did not deliberately stay away

Reasoning

The Advocate took the hearing date on 26th October 2011 yet noted the wrong date in her diary. Correspondence to her client corroborated the error. The Court held that even if she suggested the 6th March date, that did not preclude her mistakenly noting the 8th March. Such error is human and excusable.

p. 1
02

Fundamental nature of the preliminary challenge — validity of the claim and jurisdiction

Holding

Because the preliminary challenge raises a critical point of law on the validity of the claim and the Court's jurisdiction under section 90 of the Employment Act, fair administration of justice required granting the parties another opportunity to argue it

Reasoning

The dismissal for non-prosecution produced no finding on the merits of the jurisdictional objection. Since a jurisdictional issue may be raised even at the substantive hearing or by the Court sua sponte, it was in the interests of fair administration of justice to allow the objection to be argued at a preliminary stage.

p. 2

Legal principles established

#
  • A jurisdictional objection can be raised at any stage, even by the Court on its own motion, so failure to prosecute it does not dispose of the fundamental issue
  • A genuine human error by an Advocate in recording a wrong hearing date is excusable mistake justifying setting aside a dismissal for non-prosecution

Court orders

#
  1. 1.The application dated 12th March 2012 is allowed
  2. 2.Costs of Kshs.5,000 to the Claimant, to be paid before the Respondent can be granted further audience in this Court
  3. 3.Parties to agree on a suitable date for the hearing of the preliminary challenge

Authorities

#

Legislation

  • Employment ActSection 90
Jurisdiction invoked
Section 90 of the Employment Act 2007 (dispute before the Industrial Court; inherent power to vary/set aside its own orders)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Mwaura Mboche v Nacico Co-operative Savings & Credit Society [2013] KEELRC 568 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/568/eng@2013-06-21

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