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ELRCAllowedCause No 823 of 2016· [2016] KEELRC 497 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Kiambaa Dairy Farmers Co-operative Society Limited [2016] KEELRC 497 (KLR)

Employment and Labour Relations Court
14 October 2016
LNLinnet Ndolo
577 words in judgment
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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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On 13th July 2016, Nzioki Wa Makau J allowed the Claimant's application dated 10th May 2016 ex parte, the Respondent's Advocate being absent. The Respondent then applied to set aside the ex parte order so as to be allowed to defend the application. In support, Mwaniki Gachomo, Advocate swore that he was within the court precincts, asked Mr. Ouma to hold his brief, and went to the Chief Magistrate's Court for a plea session involving fourteen accused persons and eight advocates; when he returned at 11.15 am the application had proceeded. The Claimant, through Hellen Macharia's replying affidavit, opposed, asserting that the Respondent's counsel knew the matter would proceed at 11.05 am and had failed to file a reply. The court, Linnet Ndolo J, applied Order 12 Rule 7 of the Civil Procedure Rules and her earlier decision in Joseph Macharia Mbugua v M/S Young Club 7 & Restaurant, holding that the court considers the sufficiency of the cause of absence, whether the applicant obstructed justice, and any defence filed. Finding the reasons for non-attendance reasonable and that the ends of justice would best be served by hearing both parties, the court allowed the Respondent's application, with costs of the application awarded to the Claimant.

Key legal issues

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01

Whether the Respondent's absence on 13th July 2016 constituted sufficient cause to set aside the ex parte order

Holding

Yes. Counsel's absence was due to being held up in another court, and the reasons were found reasonable; the interests of justice favoured hearing both parties.

Reasoning

The court applied Order 12 Rule 7 and the principles in Joseph Macharia Mbugua v M/S Young Club 7 & Restaurant. Counsel had been within the court precincts, held his brief through Mr. Ouma, and left for a Chief Magistrate's Court matter involving fourteen accused persons and eight advocates which overran. Finding these reasons reasonable, and noting that the ends of justice are best served by hearing both sides, the court exercised its discretion to set aside the ex parte order, albeit with costs to the Claimant.

p. 2

Legal principles established

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  • In an application to set aside ex parte proceedings, the court considers the sufficiency of the cause of failure to participate, whether the applicant obstructed justice, and any defence filed.
  • Order 12 Rule 7 of the Civil Procedure Rules confers discretion on the court to set aside an ex parte order upon such terms as may be just.

Court orders

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  1. 1.The Respondent's application to set aside the ex parte order is allowed
  2. 2.The Respondent is allowed to defend the Claimant's application
  3. 3.Costs of the application to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (1)

  • Joseph Macharia Mbugua v M/S Young Club 7 & Restaurant
    [2014] eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules (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, "Kenya Union of Commercial, Food and Allied Workers v Kiambaa Dairy Farmers Co-operative Society Limited [2016] KEELRC 497 (KLR)", Case Analysis (2016). Cause No 823 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/497/eng@2016-10-14

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