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ELRCDismissedNot stated in the judgment (Cause; Industrial Court, Mombasa)· [2014] KEELRC 1198 (KLR)

Ndao Mahupa Daluh v Crown Petroleum (K) Ltd [2014] KEELRC 1198 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 July 2014
1,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a review application by the Respondent following a judgment of 23 August 2013 in which the Industrial Court (Mombasa) awarded the Claimant Kshs 145,159/-. Upon delivery of judgment the Respondent obtained 30 days' stay of execution on condition the decretal sum be deposited in court, and on 6 September 2013 it filed an application for review, contending that it was not heard because its counsel, Mr Mohamed Ali Mohamed, was engaged in Election Petition No. 6 of 2013 on the hearing date and the counsel he instructed to hold his brief, Mr Thiaka, went to the wrong court. The Claimant opposed the review, arguing that the Respondent had not met the threshold in rule 32 of the Industrial Court (Procedure) Rules, 2010 and had failed to prosecute the review timeously. The court, per Radido J, set out the five grounds for review under rule 32, of which only one need be satisfied, and found the Respondent had established none: no new evidence, no error on the face of the record, no breach of a written law and no need for clarification. The sufficiency-of-reasons ground failed because Mr Thiaka swore no affidavit and the explanation was unpersuasive. The fair hearing argument was rejected since the Respondent's own conduct, including late filing of its Response without explanation, showed it had been given the opportunity to be heard. The review application was dismissed with costs to the Claimant, and the monies deposited in court were ordered released to the Claimant forthwith. Judgment was delivered in Mombasa on 18 July 2014.

Key legal issues

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01

Conditions for review under rule 32 of the Industrial Court (Procedure) Rules, 2010

Holding

The Respondent satisfied none of the five conditions; no new evidence, no error apparent on the face of the record, no breach of written law, no need for clarification, and no sufficient reasons.

Reasoning

The court examined the grounds on the face of the review application and supporting affidavit. It found no suggestion of discovery of new and important evidence, no error or mistake on the face of the record, no need for clarification and no breach of a written law. The application therefore fell to be examined only under the sufficient-reasons condition, which the court found not established.

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02

Sufficiency of the reason that counsel went to the wrong court

Holding

The reason was insufficient because Mr Thiaka, who was said to have held counsel's brief, swore no affidavit, and the court ordinarily reviews the cause list before hearings.

Reasoning

Mr Mohamed deposed that he instructed Mr Thiaka to hold his brief and seek an adjournment, but Thiaka went to the wrong court. Thiaka did not swear any affidavit confirming this. The Mombasa Industrial Court has two courts next to each other, the cause list is read before hearings, and hearings commence around 10am, so the explanation did not persuade the court.

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03

Whether the Respondent was denied a fair hearing

Holding

The Respondent, like any litigant, has a right to a fair hearing, but by its own conduct it could not claim it was not given a chance to be heard; it had also failed to file its Response within the time ordered on 23 May 2013.

Reasoning

The Respondent filed its Response late (17 June 2013 instead of 6 June 2013) and its counsel neither explained the delay nor sought leave for out-of-time filing at the mention. The hearing date had been taken in the presence of both parties, and no witness or representative of the Respondent attended on the hearing date. Its conduct therefore precluded it from invoking the constitutional guarantee of a fair hearing.

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Legal principles established

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  • A party seeking review under rule 32 of the Industrial Court (Procedure) Rules, 2010 need only satisfy one of the five prescribed conditions, including that of sufficient reasons.
  • Mistake or negligence of an advocate, without an affidavit from that advocate explaining the circumstances, does not amount to sufficient reason for review where the litigant was afforded an opportunity to be heard.

Court orders

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  1. 1.The Respondent's application for review is dismissed with costs to the Claimant
  2. 2.The monies deposited into Court should be released to the Claimant forthwith

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 32
  • Constitution of KenyaRight to a fair hearing (referred to generally)
Jurisdiction invoked
Rule 32 of the Industrial Court (Procedure) Rules, 2010 (review jurisdiction)

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, "Ndao Mahupa Daluh v Crown Petroleum (K) Ltd [2014] KEELRC 1198 (KLR)", Case Analysis (2014). Not stated in the judgment (Cause; Industrial Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1198/eng@2014-07-18

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