Alex Semutwa v Kenya Seed Company Ltd [2015] KEELRC 1360 (KLR)
The bottom line
#A Kenyan employment court refused to revive a dismissed review application because counsel's adjournment agreement had no force and the claimant withheld key facts.
What this practically means
#Executive summary
#Key legal issues
#Effect of an agreement between counsel on adjournment
The agreement between counsel did not grant an automatic adjournment and had no legal force
The Court held that adjournments are a matter for the Court, not the parties. Any agreement between litigants must be scrutinized by the Court before it can justify an adjournment. The agreement between Mr. Gitonga and Mr. Kidiavai was therefore inchoate and without legal force, and did not excuse non-attendance on 9 December 2014.
Duty of full and frank disclosure in discretionary applications
The Claimant failed to make full and frank disclosure regarding the advocate allegedly instructed to hold his brief
Where a party relies on factual information to explain a failure (such as non-attendance), full disclosure must be made. The Claimant did not name the advocate said to have been instructed to attend Court, nor explain why that advocate did not attend. This failure of disclosure weighed against exercising discretion in the Claimant's favour.
Whether an innocent litigant should be punished for mistakes of counsel
The argument did not avail the Claimant given the lack of disclosure and the inchoate adjournment agreement
Counsel for the Claimant urged that an innocent litigant should not be punished for the mistakes of his advocate. The Court, however, found that the Claimant had not made frank disclosure of the facts explaining the non-attendance, and that the parties' agreement could not itself justify an adjournment, and therefore declined to reinstate the review application.
Legal principles established
#- Parties cannot agree among themselves to allow an adjournment; only the Court decides whether an adjournment is necessary
- A party seeking the exercise of the Court's discretion must make frank and honest disclosure
Court orders
#- 1.The motion filed in Court on 8 January 2015 seeking reinstatement of the review application was dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Inherent discretion of the Court over its own causes and applications (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Semutwa v Kenya Seed Company Ltd [2015] KEELRC 1360 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1360/eng@2015-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.