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ELRCDismissedJudicial Review Application No. 2 of 2014· [2015] KEELRC 1123 (KLR)

Republic v Kenya Industrial Estates Limited & another Ex-parte Tom Dulla Odeny [2015] KEELRC 1123 (KLR)

Employment and Labour Relations Court
15 May 2015
BOByram Ongaya
1,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a bid to undo ex-parte orders because the lawyer skipped the hearing and no real defence was disclosed.

What this practically means

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Executive summary

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The ex-parte applicant, Tom Dulla Odeny, filed a substantive notice of motion for judicial review orders on 18.11.2014. The respondents were granted repeated indulgences to file a replying affidavit, grounds of opposition and written submissions but complied with none. On 3.03.2015 the substantive motion proceeded unopposed and was allowed, with costs to the applicant. The respondents then moved the court on 5.03.2015 under Order 10 rule 11 and Order 51 rules 1 and 13(2) of the Civil Procedure Rules, seeking stay of the ex-parte orders, their setting aside, and leave to file a replying affidavit out of time. They attributed the non-attendance to counsel filing a wrongly headed replying affidavit in the registry under a wrong case number, and to the departure of the counsel previously handling the file. The ex-parte applicant opposed, terming the non-attendance a litigation joke and contending that no serious defence was disclosed. The court held that counsel's proper course on 3.03.2015 was to appear and explain the predicament rather than proceed to the registry, and found no just and reasonable ground for non-attendance. It further held that a litigant ignoring clear court directions cannot be permitted to derail justice through unjustified inadvertence, and that an applicant seeking to set aside an ex-parte judgment must show the clear facts of the intended defence, not merely seek an opportunity to defend. Finding no serious opposition disclosed, the court dismissed the motion with costs.

Key legal issues

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01

Justifiable reason for non-attendance

Holding

There was no just and reasonable ground for counsel's failure to attend court on 3.03.2015; counsel should have appeared and explained rather than gone to the registry to file a wrongly headed affidavit.

Reasoning

The matter was fixed for hearing by consent. Counsel chose to attend the registry to file a replying affidavit bearing the wrong case number and out of time, instead of appearing before the court to seek appropriate prayers. The court held this was not a legitimate excuse for absence.

p. 2
02

Serious defence on setting aside

Holding

The applicants did not demonstrate a serious defence or opposition to the substantive judicial review motion.

Reasoning

Beyond repeated non-compliance with court directions, the applicants failed to disclose the substance of any opposition. The court reasoned that an applicant under Order 10 rule 11 must show the line of defence, not merely ask for a chance to defend; here nothing was shown, and the ex-parte orders stood.

p. 3

Legal principles established

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  • A litigant or counsel who fails to adhere to clear court directions will not be permitted to derail justice on account of unjustified inadvertence.
  • An applicant seeking to set aside an ex-parte judgment must show the clear facts of the intended defence or opposition, not merely seek a chance to defend.

Court orders

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  1. 1.The notice of motion dated 5.03.2015 is dismissed
  2. 2.Respondents to pay costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11; Order 51 rules 1 and 13(2)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court ActSection 3
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court; Section 3 of the Employment and Labour Relations Court Act

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, "Republic v Kenya Industrial Estates Limited & another Ex-parte Tom Dulla Odeny [2015] KEELRC 1123 (KLR)", Case Analysis (2015). Judicial Review Application No. 2 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1123/eng@2015-05-15

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