John Ojwang Atieno & 13 Others v Migori County Government & another [2013] KEELRC 840 (KLR)
The bottom line
#Kenya's Industrial Court allowed a review because a lawyer's missed court date shouldn't punish the client, but kept the existing interim orders in place.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's inadvertent failure to attend court and file a reply constitutes sufficient reason for review under Rule 32(e) of the Industrial Court Rules
Yes; counsel's mistake should not be visited on the client and the court's discretion is wide, exercised to do justice to the parties
Rule 32 sets out grounds for review: discovery of new matter, error apparent on the face of the record, breach of written law, need for clarification, or any other sufficient reason. The court found none of the first grounds established, but held under Rule 32(e) that counsel's inadvertence is a sufficient reason, relying on Court of Appeal authority adopting Patel v E.A. Cargo Handling Services Ltd that the discretion should not be fettered and the main concern is to do justice between the parties.
Whether the claimants' application filed under the wrong procedure can be annulled
No; the court declined to annul it, invoking Article 159 of the Constitution on doing substantive justice
The applicants argued the claimants' application was brought under the wrong provisions. The court, referring to Article 159 of the Constitution, held that its main objective is to do justice to the parties, implying that procedural missteps by the claimants would not defeat the claim. The review was instead allowed to enable the applicants to file their reply and be heard on the merits.
Legal principles established
#- Counsel's mistake should not be visited against his clients; the court's discretion to set aside or review is wide and its main concern is to do justice to the parties
- Unless and until the court has pronounced judgment on the merits or by consent, it retains power to revoke an order obtained only by failure to follow rules of procedure
Court orders
#- 1.The application to review the court's ruling given on 18.9.2013 is allowed on condition that the orders given remain in force in the interim
- 2.The respondent applicants are given leave to file and serve their reply to the memo of claim within 7 days; the respondents have leave to reply within 7 days thereafter upon service
- 3.The application to be heard inter partes on 5.11.2013
- 4.Interim orders as at 18.9.2013 to remain in force
- Jurisdiction invoked
- Rule 12, 16, 27 and 32 of the Industrial Court Rules and Section 12 of the Industrial Court Act No. 20 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ojwang Atieno & 13 Others v Migori County Government & another [2013] KEELRC 840 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/840/eng@2013-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.