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ELRCDismissedCause No 205 of 2013· [2016] KEELRC 207 (KLR)

Thomas Mghanga Wandoe v Kassam Hauliers Ltd [2016] KEELRC 207 (KLR)

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

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A Kenyan employment court refused to reopen an ex parte award because the absent party offered no medical proof or communication of its advocate's illness.

What this practically means

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Executive summary

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This ruling by James Rika, Judge, delivered at Mombasa on 13th December 2016, determined a Respondent's application dated 25th October 2016 seeking to set aside an ex parte Award delivered in favour of the Claimant, and to be allowed to give its Response. The Claimant had closed his case on 27th May 2015; the Respondent's case was scheduled for 23rd June 2016, a date the Respondent itself had taken. On that date neither the Respondent nor its Advocates attended, and the Court, on the Claimant's application, closed the proceedings and delivered its Award on 23rd September 2016. The Respondent's application was supported by the affidavit of its Advocate, Mr. Makasembo Makonyango, who claimed he was taken ill and unable to participate; the Claimant opposed it through the affidavit of his Advocate, Mr. Samuel Odhiambo Eliakim, noting that no advocate held Mr. Makasembo's brief and no medical record was produced. The Court found there was no communication of any kind to the Court or to the Claimant's Advocate about the alleged illness, and no medical evidence. It noted the Respondent had two cases listed the same day and should have been more focused, having taken the hearing date itself. It further observed a pattern of lethargy by the Respondent from the commencement of the matter in October 2013, participating only through prodding. The Court held the failure to participate inexcusable, rejected the applications of 25th and 21st October 2016, and awarded costs to the Claimant.

Key legal issues

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Whether the ex parte Award should be set aside on the ground of the Respondent's Advocate's alleged illness on the hearing date

Holding

The application was rejected; the alleged illness was unsupported by any medical record or communication, and the Respondent's absence was a continuation of its lethargic conduct of the case.

Reasoning

The Respondent itself fixed the hearing date and the Claimant duly attended. On the date, neither the Respondent nor its Advocates appeared, and no e-mail, sms, call or correspondence communicated the claimed illness. No medical record was shown to the Court. The Respondent had two cases on the same date and should have been more focused, having taken the hearing date itself. Its conduct throughout showed a large measure of prodding, making the absence inexcusable.

p. 2

Legal principles established

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  • A party cannot have an adverse determination set aside on the basis of illness where it gave no communication of the alleged illness and produced no medical record; parties must not wait until the Court has made an adverse determination to become 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
Employment and Labour Relations Court jurisdiction over its ex parte Awards and applications to set them aside (statutory provision not cited 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, "Thomas Mghanga Wandoe v Kassam Hauliers Ltd [2016] KEELRC 207 (KLR)", Case Analysis (2016). Cause No 205 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/207/eng@2016-12-13

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