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ELRCPartially AllowedApplication dated 19th January 2015 (in a claim arising from application dated 24th November 2014)· [2015] KEELRC 966 (KLR)

Benson Omwala Oduor v Sec, B.O.G Equator and Special School [2015] KEELRC 966 (KLR)

Industrial Court of Kenya
6 March 2015
MOMaureen Onyango
821 words in judgment
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The bottom line

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Kenya's Industrial Court set aside a dismissal of a claimant's application, ruling an advocate's lateness from a vehicle breakdown was an excusable mistake, though costs followed.

What this practically means

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Executive summary

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The claimant, Benson Omwala Oduor, through his advocate Newton Ingosi, brought an application dated 19th January 2015 seeking to set aside an order dismissing his earlier application dated 24th November 2014, and to have that application heard inter partes. The underlying dispute concerned an ex parte order restraining the respondent from terminating the claimant on grounds of redundancy; the dismissal occurred on 19th January 2015 when both the claimant and his advocate failed to attend court. The respondent opposed, arguing that the earlier application breached Rule 16(8)(a) and (b) of the Industrial Court (Procedure) Rules (prohibiting ex parte reinstatement orders), lacked a supporting Memorandum of Claim on redundancy, and that the advocate's alleged vehicle breakdown was not an act of God and was unsupported by evidence of repairs. The court framed a single issue: whether there was a valid ground for granting the orders. It held that courts have wide discretion to set aside ex parte orders to meet the ends of justice, declining only where the applicant intends to delay justice. The advocate's lateness due to a mechanical problem was found to be an excusable mistake, though avoidable had he contacted the respondent's counsel. On 6th March 2015 the court set aside the dismissal and ordered the claimant's advocate to pay Kshs 5,000/= to the respondent as thrown away costs before the application is set down for hearing.

Key legal issues

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01

Whether the dismissal of the claimant's application dated 24th November 2014 should be set aside

Holding

The court set aside the dismissal, holding the advocate's lateness due to a mechanical problem was an excusable mistake, though it could have been avoided

Reasoning

The court reaffirmed its wide discretion to set aside ex parte orders to meet the ends of justice, exercisable unless the applicant intends to delay justice. The advocate's affidavit explained lateness by a vehicle mechanical problem, which the court found excusable. However, the court noted the advocate could have contacted the respondent's counsel or another advocate to hold the file, and so tempered the reinstatement with thrown away costs against the advocate.

p. 2

Legal principles established

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  • Courts have wide discretion to set aside ex parte orders in the interest of justice, and may decline only where the applicant intends to delay the course of justice
  • A court may decline to set aside where the applicant intends to delay justice
  • Counsel's late attendance due to mechanical breakdown may constitute an excusable mistake

Court orders

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  1. 1.The order made by the court dismissing the claimant's application dated 24th November 2014 is set aside
  2. 2.The claimant's advocate shall pay Kshs 5,000/= to the respondent as thrown away costs before the application is set down for hearing

Authorities

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Legislation

  • Industrial Court (Procedure) RulesRule 16(8)(a) and (b)
Jurisdiction invoked
Industrial Court (Procedure) Rules; inherent discretion to set aside ex parte orders

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, "Benson Omwala Oduor v Sec, B.O.G Equator and Special School [2015] KEELRC 966 (KLR)", Case Analysis (2015). Application dated 19th January 2015 (in a claim arising from application dated 24th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/966/eng@2015-03-06

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