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ELRCAllowedCause No 355 of 2013· [2014] KEELRC 1003 (KLR)

Joel Mwangi v Kenya Power and Lighting Co. Ltd [2014] KEELRC 1003 (KLR)

Employment and Labour Relations Court
16 May 2014
BOByram Ongaya
557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court revived a dismissed case, ruling a worker shouldn't lose his claim because his lawyer failed to pass on a court order.

What this practically means

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Executive summary

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The claimant Joel Mwangi moved the court by notice of motion dated 5.03.2014 under Order 45 rule 1 of the Civil Procedure Rules 2010 seeking review of the order of 25.11.2013 dismissing his suit, reinstatement of the case, and liberty to prosecute it against the respondent. The dismissal arose when, on 25.11.2013, the case was called out at 11.25 am with both parties absent, and the claimant had not paid court adjournment fees of Kshs.400.00 ordered on 4.11.2013; the court dismissed the case for failure to attend and to comply with court orders. The applicant explained that Mr. Karanja Advocate, who held Mr. Githui's brief, never informed him of the adjournment fees order, and the dismissal was discovered on 22.01.2014 when seeking a hearing date. He argued that a mistake of counsel should not be visited on the client, whose case had high chances of success. The respondent opposed through a replying affidavit of Sigilai Kirui, its Acting Benefits and Staff Relations Manager, filed through the Federation of Kenya Employers. The court, however, found the respondent had neither entered appearance nor filed a memorandum of response, and that the Federation had not filed and served a notice of appointment; the affidavit was therefore irregularly filed and struck out, leaving the application unopposed. Noting the applicant's compliance with the adjournment fees order and the absence of a memorandum of response, the court found the claim had a high chance of success and allowed the application, setting aside the dismissal and giving directions for the respondent to enter appearance and file its response, with costs in the cause.

Key legal issues

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01

Irregular filing of the replying affidavit

Holding

The replying affidavit was irregularly filed as the Federation of Kenya Employers never filed a notice of appointment; it was struck out and the application stood unopposed.

Reasoning

The court examined its record and found the respondent had not entered appearance or filed a memorandum of response, and that the Federation of Kenya Employers had not filed and served the notice of appointment required to act for the respondent. The irregularity was held not curable at that stage, so the affidavit was amenable to be struck out, leaving the application unopposed.

p. 2
02

Whether the dismissal order of 25.11.2013 should be set aside on review

Holding

The dismissal was set aside because the applicant had complied with the adjournment fees order and, in absence of a memorandum of response, the claim had a high chance of success.

Reasoning

The claimant's counsel on the dismissal date failed to communicate the adjournment fees order to him, and the applicant only discovered the dismissal orders when seeking a hearing date. Having since complied with the order to pay the adjournment fees, and with no memorandum of response on record, the court found the claim had a high chance of success and the claimant was entitled to the orders prayed for under Order 45 rule 1.

p. 2

Legal principles established

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  • A replying affidavit filed by counsel who has not filed and served a notice of appointment is irregularly filed and liable to be struck out.

Court orders

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  1. 1.The orders of 25.11.2013 dismissing the case are set aside and the claimant is at liberty to take steps to prosecute the suit
  2. 2.The respondent at liberty to enter appearance and to file and serve the memorandum of response by 23.05.2014 and the claimant at liberty to file a reply thereto by 30.05.2014
  3. 3.The case to be mentioned on a date convenient to the parties for directions on the hearing of the suit
  4. 4.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 45 rule 1
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joel Mwangi v Kenya Power and Lighting Co. Ltd [2014] KEELRC 1003 (KLR)", Case Analysis (2014). Cause No 355 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1003/eng@2014-05-16

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