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ELRCDismissedCause No 204 of 2013· [2016] KEELRC 194 (KLR)

Edward Nyange Nyambu v Kassam Hauliers Ltd [2016] KEELRC 194 (KLR)

Employment and Labour Relations Court
13 December 2016
JRJames Rika
555 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant closed his case on 27th May 2015, and the Respondent's case was scheduled for hearing on 23rd June 2016 - a date the Respondent itself had fixed. Neither the Respondent nor its Advocates attended, and the Court closed the proceedings and delivered an Award in the Claimant's favour on 23rd September 2016. The Respondent then filed an application dated 25th October 2016 seeking to have the ex parte Award set aside and to be allowed to give its Response, supported by the affidavit of its Advocate, Mr. Makasembo Makonyango, who claimed he had been taken ill on the hearing date. The application was opposed through the affidavit of the Claimant's Advocate, Mr. Samuel Odhiambo Eliakim, who pointed out that no advocate was sent to hold Mr. Makasembo's brief and that no medical record was produced. The Court found there had been no communication to the Court or to the Claimant's Advocate about the illness - no correspondence, e-mail, sms or call - and no medical record of any kind was shown. The Respondent had itself taken the hearing date, and two of its cases were listed that day, requiring greater focus. The Court further observed that the Respondent had been lethargic from the outset, repeatedly failing to file its Response since the matter first came up on 31st October 2013, and participating only through prodding. The failure to attend was held consistent with that lethargy and inexcusable. The application dated 25th October 2016, together with a related application of 21st October 2016, was rejected, with costs to the Claimant.

Key legal issues

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01

Whether the Respondent's non-attendance, attributed to the illness of its Advocate, justified setting aside the ex parte Award

Holding

The application was rejected because there was no evidence of illness and no communication to the Court or opposing counsel; the Respondent had fixed the hearing date itself and had been lethargic throughout.

Reasoning

The Court found that the hearing date had been taken by the Respondent itself, that the Claimant attended upon being notified by the Respondent, and that no advocate, legal assistant, letter, e-mail, sms or call communicated the alleged illness. No medical record was produced. The non-attendance was consistent with the Respondent's persistent lethargy, including repeated extensions to file its Response since October 2013, and was therefore inexcusable.

p. 2

Legal principles established

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  • A party who takes out a hearing date is responsible for attending and cannot blame the court or the opposing party for closure of proceedings following its own non-attendance.
  • Parties must actively prosecute and defend their cases and should not wait until an adverse determination before becoming engaged.

Court orders

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  1. 1.The Application filed by the Respondent on 25th October 2016, and the related Application of 21st October 2016, are rejected.
  2. 2.Costs to the Claimant.
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court over its proceedings (not expressly stated in the 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, "Edward Nyange Nyambu v Kassam Hauliers Ltd [2016] KEELRC 194 (KLR)", Case Analysis (2016). Cause No 204 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/194/eng@2016-12-13

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