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ELRCAllowedCause No 2484 of 2012· [2014] KEELRC 1398 (KLR)

Bernard Levoywa v Salina Transporters [2014] KEELRC 1398 (KLR)

Industrial Court (Employment and Labour Relations Court)
12 November 2014
563 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Industrial Court at Nairobi, delivered by Linnet Ndolo J on 12th November 2014, determines the Respondent's application dated 23rd June 2014 seeking stay of execution and setting aside of the Court's award dated 19th May 2014, entered in the Claimant's favour after the Respondent failed to attend the hearing on 2nd April 2014. The Respondent, through the affidavit of Stephen Gitonga, explained that a hearing notice served on 2nd December 2013 was not entered in the advocate's diary owing to a mistake by the advocate's staff, an honest and excusable error which severely prejudiced the Respondent. The Claimant countered that counsel was properly served in good time, that the failure to attend amounted to professional negligence which should not be visited on the Claimant, and that the application was designed to delay justice. The court, citing the principles in Edwin Oduor Chacha, held that setting aside ex parte judgments is a discretion balancing the successful claimant's right to the fruits of the award against the defendant's right to be heard, to be exercised to avoid injustice arising from accident, inadvertence or excusable mistake, with denial of a hearing as the last resort. Examining the record, the court found no deliberate attempt to delay and concluded the non-attendance was an excusable mistake. The award dated 19th May 2014 was set aside, subject to the Respondent paying the Claimant thrown away costs of Kshs. 10,000 before the next hearing date.

Key legal issues

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01

Whether the advocate's failure to diarise the hearing date constituted an excusable mistake

Holding

It did; the non-attendance on 2nd April 2014 was an excusable mistake for which the Respondent should not suffer.

Reasoning

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.

p. 2
02

Whether the Respondent deliberately sought to delay the matter

Holding

No; the record disclosed no deliberate attempt to delay.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The award dated 19th May 2014 set aside
  2. 2.Respondent to pay the Claimant thrown away costs of Kshs. 10,000 before the hearing date

Authorities

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Cases cited (1)

  • Edwin Oduor Chacha Vs Dr. Philisters Onyango and Another
    [2013]
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

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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, "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.