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ELRCOtherPetition No. 295 of 2007· [2014] KEELRC 320 (KLR)

Major Edwin Macharia v Attorney General [2014] KEELRC 320 (KLR)

Industrial Court
21 July 2014
JRJames Rika
705 words in judgment
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The bottom line

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Kenya's Industrial Court let the Attorney-General back into a missed hearing despite weak excuses — but only after paying the petitioner Kshs.10,000 in costs.

What this practically means

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Executive summary

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This Petition was originally filed in the High Court at Nairobi as Petition No. 295 of 2007 and transferred to the Industrial Court on 4th December 2012. The Petitioner scheduled the matter for hearing on 12th March 2014, inviting the Respondent (the Attorney-General) to fix a suitable date; the Respondent neither responded to the invitation nor attended the hearing, at which the Petitioner gave evidence and rested her Petition. The Respondent then filed an application dated 20th May 2014 seeking to set aside the proceedings and consequential orders, supported by an affidavit of State Counsel Esther N. Muchiri, explaining that the Attorney-General's clerk failed to pass on the Hearing Notice. The Petitioner opposed, arguing no good reason was shown for non-attendance. The Court found service was not disputed, that the Respondent's explanation was 'a very weak reason', and that the failure to appear at the Registry was unexplained. Nevertheless, noting the Respondent had filed a Response and submissions at both the High Court and Industrial Court, demonstrating willingness to participate, the Court exercised its discretion in favour of the Respondent on the basis of the obligation to administer justice on merit. Rather than setting aside the proceedings outright, the Court varied the orders of 12th March 2014: the Petitioner may be recalled for cross-examination and re-examination at a date to be agreed at the Registry, parties may adduce further evidence before closure, and the Respondent is to pay the Petitioner Kshs.10,000 before the next hearing date.

Key legal issues

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01

Whether ex parte proceedings taken upon validly served notice should be disturbed on account of the Respondent's non-attendance

Holding

Service and the ex parte hearing were regular; the reason for non-attendance was weak, but the Court varied rather than upheld the orders, allowing the Respondent to participate at a cost.

Reasoning

The Court found service was not disputed and the Respondent was invited to fix a hearing date but did not respond or attend. The explanation of a clerk's failure to pass on the notice was described as very weak. However, the Respondent had filed a Response and submissions at the High Court and Industrial Court, showing willingness to participate, and the Court's duty to do justice on merit led it to vary the orders and permit the Petitioner's recall at the Respondent's expense.

p. 2
02

Whether the Petitioner, who has testified and closed her case, may be subjected to cross-examination and further evidence

Holding

Yes - she may be recalled for cross-examination and re-examination, with parties at liberty to adduce further evidence, at the Respondent's cost.

Reasoning

The Court held that a party who has rested its case may, in the interests of a fair hearing on merit, be recalled where the opposing party demonstrates willingness to participate, provided the party proposing recall bears the financial burden occasioned by its own default. A costs sanction of Kshs.10,000 was imposed on the Respondent to compensate the Petitioner.

p. 2

Legal principles established

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  • Even a weak ground may support setting aside or variation of ex parte proceedings where the overriding objective of administering justice on merit and the party's demonstrated willingness to participate so justify.

Court orders

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  1. 1.The Orders of 12th March 2014 are varied
  2. 2.The Petitioner may be recalled for cross-examination and re-examination at a date to be agreed upon by the Parties at the Registry
  3. 3.Parties are at liberty to adduce such evidence as they may wish before proceedings are closed
  4. 4.The Respondent to pay to the Petitioner costs of Kshs.10,000 payable before the next hearing date
Jurisdiction invoked
Jurisdiction of the Industrial Court following transfer of the Petition from the High Court at Nairobi on 4th December 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Major Edwin Macharia v Attorney General [2014] KEELRC 320 (KLR)", Case Analysis (2014). Petition No. 295 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/320/eng@2014-07-21

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