Patrick A Asoha v Paolo Rossi & Another [2014] KEELRC 1183 (KLR)
The bottom line
#Kenya's Employment Court reinstated a dismissed redundancy case, ruling that a lawyer's mistake shouldn't deny a worker his day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether a second application to set aside a dismissal order was barred by res judicata
The Court held that res judicata did not bar the second application; the merits of the claim and the applicable principles on mistakes of counsel justified setting aside the dismissal
The Respondent argued that a similar application dated 25 April 2014 had been dismissed on 30 May 2014 with no new issues raised. The Court nonetheless considered the principles from the cited authorities on mistakes by advocates, noted that some allegations in the Memorandum of Claim could amount to unfair labour practices if proved, and that it was undisputed the Claimant had worked as a security guard before being declared redundant. Weighing these, the Court found the interests of justice favoured reinstatement of the suit rather than punishing the Claimant for his advocate's mistake.
Whether a litigant should be punished for the mistake of his advocate
No - the Court has discretion to set aside its orders where a mistake or error is shown, applying Belinda Murai and Philip Chemwolo
The Court reiterated the discretion to set aside its own orders where mistake or error is shown, quoting Madan JA in Belinda Murai & others v Amoi Wainaina that a mistake is a mistake regardless of counsel's seniority, and the Court of Appeal in Philip Chemowolo v Augustine Kubede that blunders will continue to be made and a party should not suffer the penalty of not having his case heard on merit absent fraud or intention to overreach.
Legal principles established
#- A mistake by counsel should not shut a party out of justice; the court should rectify mistakes where the interests of justice so dictate
- Unless there is fraud or intention to overreach, no error or default cannot be put right by payment of costs; courts exist to decide rights, not impose discipline
Court orders
#- 1.The order dismissing the suit is set aside and the suit is reinstated
- 2.A hearing date of the main Cause to be fixed forthwith
- 3.No orders on costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Industrial Court over a Memorandum of Claim alleging unlawful redundancy and non-compliance with prescribed minimum wages orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick A Asoha v Paolo Rossi & Another [2014] KEELRC 1183 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1183/eng@2014-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.