Bernard Levoywa v Salina Transporters [2014] KEELRC 1398 (KLR)
The bottom line
#Kenya's Industrial Court set aside an ex parte employment award, ruling that an advocate's honest diary mistake should not cost a party their day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the advocate's failure to diarise the hearing date constituted an excusable mistake
It did; the non-attendance on 2nd April 2014 was an excusable mistake for which the Respondent should not suffer.
The court examined the record and found no evidence of deliberate delay. Applying the principles in Edwin Oduor Chacha, the discretion to set aside ex parte awards is exercised to avoid injustice from accident, inadvertence or excusable mistake, and should not be used to aid a party deliberately delaying justice. The advocate's error was honest and inadvertent, so setting aside was warranted subject to thrown away costs.
Whether the Respondent deliberately sought to delay the matter
No; the record disclosed no deliberate attempt to delay.
The Claimant argued the application was an attempt to delay justice and that the failure to attend amounted to professional negligence. The court, however, examined the record itself and found no evidence of deliberate delay, distinguishing genuine inadvertence from calculated obstruction. On that factual finding, the discretion was exercised in the Respondent's favour, conditioned on thrown away costs.
Legal principles established
#- Setting aside ex parte judgments is discretionary and balances the successful claimant's right to the fruits of the award against the defendant's right to be heard.
- To deny a party the right to be heard should be the last resort.
Court orders
#- 1.The award dated 19th May 2014 set aside
- 2.Respondent to pay the Claimant thrown away costs of Kshs. 10,000 before the hearing date
- Jurisdiction invoked
- Inherent discretion of the Industrial Court to set aside ex parte awards; not expressly tied to a constitutional/statutory provision in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Levoywa v Salina Transporters [2014] KEELRC 1398 (KLR)", Case Analysis (2014). Cause No 2484 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1398/eng@2014-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.