Rajab Wakoli v Abson Motors Limited [2016] KEELRC 581 (KLR)
The bottom line
#Kenya's Employment Court reopened an employer's closed defence case because a traffic jam delay was an excusable mistake, but ordered costs.
What this practically means
#Executive summary
#Key legal issues
#Grounds for review under Rule 32 of the Industrial Court (Procedure) Rules 2010
Review may be granted for discovery of new matter, error apparent on the face of the record, breach of written law, clarification, or other sufficient reasons
The court set out Rule 32 in full and invoked the 'any other sufficient reasons' limb, reading it together with the Court of Appeal's guidance on excusable mistake. The non-attendance due to a traffic jam, followed by a prompt application the next day, was treated as a sufficient reason warranting review of the closing orders.
Whether the failure to attend court was an excusable mistake justifying setting aside the closure
Yes - the counsel and witness set out in time but were delayed by traffic; the applicant moved with dispatch the very next day
The court found the witness had travelled from Mombasa and was ready to testify, and that the application filed the day after closure demonstrated diligence rather than loss of interest. Following CMC Holdings v Nzioki, the court held it would be improper to turn its back on a litigant demonstrating an excusable mistake, and mitigated prejudice through thrown away costs.
Legal principles established
#- A court should exercise its discretion to set aside its orders where a mistake or excusable error is noted, and a prompt application demonstrating an excusable mistake is not conduct of a party who has lost interest
Court orders
#- 1.The Respondent/Applicant's notice of motion dated 3rd November 2015 for review is allowed and the orders of 2nd November 2015 closing the case are reviewed/reopened
- 2.The Respondent/Applicant to pay thrown away costs of Kshs. 25,000/- to the Claimant/Respondent within 14 days, failing which the matter will proceed to judgment
- 3.Matter to be listed for directions 14 days from the date of the Ruling
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010, Rules 25(2) and 32
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rajab Wakoli v Abson Motors Limited [2016] KEELRC 581 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/581/eng@2016-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.