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ELRCDismissedCause No 130 of 2013· [2015] KEELRC 397 (KLR)

Joseph Alego Awendo & 23 others v Egerton University & another [2015] KEELRC 397 (KLR)

Employment and Labour Relations Court
23 October 2015
RSRadido Stephen
963 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a bid to revive a dismissed claim, ruling that setting aside such orders demands full disclosure and affidavits from those with direct knowledge.

What this practically means

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Executive summary

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About 24 claimants sued the respondents on 16 May 2013 claiming unpaid terminal dues and unfair and illegal termination of employment. The parties recorded a consent on 12 June 2014 under which the respondent was to pay Kshs 4,433,683.00 as terminal dues plus agreed costs of Kshs 342,388.00, with a 30-day stay of execution. Two motions followed: one by Veronica W. Macharia seeking review of the consent on the basis that her benefits were computed using the designation 'herder' rather than 'general labourer'; the other by Daniel Ouma Oduor and four others seeking inclusion of Josephat Laboso and Peter Oducho Baluthi, whose names had been omitted, and computation of their benefits. The second motion was compromised by a consent filed on 18 December 2014, leaving only Macharia's application pending. On 15 June 2015 that application was dismissed for want of attendance, prompting the application dated 23 June 2015 seeking to set aside the dismissal. The court held that setting aside is discretionary and requires sufficient reasons and candid, full disclosure. The advocate said to have been present on 22 April 2015 swore no affidavit, and the court record showed non-attendance; the claim also annexed a document showing the disputed designation. The motion dated 23 June 2015 was dismissed with costs to the respondents, and the court admonished counsel for inconsistent pleadings.

Key legal issues

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01

Whether sufficient reasons and full disclosure were made to justify setting aside the dismissal of the 18 August 2014 application

Holding

The application failed because the affidavit supporting it was sworn by the wrong person and contradicted the court record; the discretion could not be exercised in the Claimants' favour.

Reasoning

The setting aside order is discretionary and requires sufficient reasons plus candid and full disclosure. Mrs. Kirui, the advocate said to have been told a ruling was reserved, swore no affidavit, yet she was the proper deponent. The court record showed she did not attend on 22 April 2015. Further, the supporting affidavit ignored that the claim itself annexed a document showing Macharia's designation as a herder, information within her own knowledge.

p. 3
02

Status of the second motion (Daniel Ouma Oduor & 4 others)

Holding

It was compromised by the consent filed on 18 December 2014 providing for inclusion of Josephat Laboso and Peter Oducho Baluthi and computation of their benefits; nothing remained for determination.

Reasoning

The parties' advocates filed a consent in court on 18 December 2014 agreeing that the two omitted names be included and their claims computed forthwith. By that mutual agreement the motion was spent, leaving only Veronica Macharia's application for determination.

p. 3

Legal principles established

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  • A party seeking the exercise of the court's discretionary power to set aside a dismissal must satisfy the court that there are sufficient reasons and must make candid and full disclosure.
  • The proper person to depose to facts within an advocate's knowledge is that advocate, not another member of the firm.
  • Advocates should maintain consistency and accuracy in pleadings, including party names, to avoid confusion in resulting orders.

Court orders

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  1. 1.The motion dated 23 June 2015 seeking setting aside of the dismissal order is dismissed
  2. 2.Costs of the motion awarded to the Respondents
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction over the employment Cause (statute not expressly cited in 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, "Joseph Alego Awendo & 23 others v Egerton University & another [2015] KEELRC 397 (KLR)", Case Analysis (2015). Cause No 130 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/397/eng@2015-10-23

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