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ELRCDismissedCause filed 11 September 2012, Nairobi (number not stated)· [2015] KEELRC 735 (KLR)

Daniel Maina Wanyoike v Kenya Power &Lighting; Company Ltd [2015] KEELRC 735 (KLR)

Industrial Court (Employment and Labour Relations Court)
24 July 2015
RSRadido Stephen
1,303 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power lost its bid to overturn an unfair dismissal judgment because it failed to show it acted diligently.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair dismissal. When the Cause came up for hearing on 27 November 2014, the Respondent and its advocates were absent; the hearing proceeded and judgment was delivered on 20 February 2015, finding the dismissal unfair and awarding the equivalent of six months' gross wages, Kshs 871,446/-, as compensation. The Respondent then moved to set aside the judgment and for leave to defend, explaining that the advocate with conduct of the matter, Mr. Njiru, had left the Federation of Kenya Employers, the hearing date had not been diarised, the file was not transferred to the Nakuru office as intended, the responsible officer was on leave, and the entire legal team was at a retreat on the hearing date. It offered to deposit the decretal amount in a joint interest-earning account as security. The Claimant opposed, pointing out that the hearing date was taken by consent, a hearing notice was served, submissions were served after hearing, and the Cause had already taken five years. The Court found that the Nairobi office under Mr. Njiru had conduct of the matter; the Respondent did not disclose when Mr. Njiru left, did not produce his diary or explain handover of his docket, and the published weekly cause list and the client's own representatives could have alerted it. The Court held that the discretion to set aside a judgment must not be exercised arbitrarily or capriciously, and not to aid a party who is not diligent. The motion dated 23 March 2015 was dismissed with costs to the Claimant.

Key legal issues

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01

Whether the Respondent's advocate's departure from employment and failure to diarise the hearing date excused non-attendance and justified setting aside the ex parte judgment

Holding

No; the Respondent did not disclose when Mr. Njiru left employment, did not produce his diary, and the Federation's legal team made no arrangements despite published cause lists. The motion was dismissed with costs.

Reasoning

The hearing date was taken in the presence of both parties' representatives and the Claimant additionally served a hearing notice. The office with conduct of the case was the Nairobi office under Mr. Njiru, not Mr. Masese. The Respondent failed to disclose when Mr. Njiru left, did not produce his diary or explain handover of his docket, and even the client's representatives did not attend. The Court publishes its cause list a week in advance, and a retreat was no excuse for failing to arrange representation. The discretion to set aside should not aid a party who is not diligent.

p. 3

Legal principles established

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  • The discretion to set aside a judgment must be exercised judicially, to avoid injustice but not to aid a party who has not been diligent

Court orders

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  1. 1.The motion dated 23 March 2015 seeking setting aside of the judgment and leave to defend is dismissed
  2. 2.Costs of the motion to the Claimant

Authorities

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Cases cited (4)

  • Esther Wamaitha Njihia & 2 Ors. v Safaricom Ltd
    Nairobi High Court Civil Case No. 62 of 2011
  • Maina v Mugura
    Nairobi Civil Appeal No. 27 of 1982
  • Wangulu Enterprises v Abdallah Said Kugotwa & 6 Ors
    (2013) eKLR
  • Teachers Service Commission v ex parte Patrick M. Njuguna
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations disputes jurisdiction of the Industrial Court (the Cause arises from alleged unfair dismissal)

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, "Daniel Maina Wanyoike v Kenya Power &Lighting; Company Ltd [2015] KEELRC 735 (KLR)", Case Analysis (2015). Cause filed 11 September 2012, Nairobi (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/735/eng@2015-07-24

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