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ELRCDismissedCause No 554 of 2014· [2016] KEELRC 643 (KLR)

Christopher Kipsang Biwott v Emrock Investment Tea Factory Ltd (Cause 554 of 2014) [2016] KEELRC 643 (KLR)

Employment and Labour Relations Court
30 September 2016
RSRadido Stephen
451 words in judgment
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The bottom line

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A Kenyan employer lost its chance to defend an employment claim because its lawyer missed two hearings, and the court refused to excuse a forgotten diary date.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nakuru on the Respondent's application to set aside ex parte proceedings in a cause heard in its absence on 10 March 2016. The hearing date had been fixed on 12 November 2015, with directions that the Claimant serve a hearing notice on the Respondent. The first hearing could not proceed and was rescheduled to 10 March 2016, on which date neither the Respondent nor its counsel attended. The Claimant, being ready to proceed, filed an affidavit of service showing that the Respondent's advocate had acknowledged service of the hearing notice. After the close of the Claimant's case, judgment was reserved, but the Respondent filed an application seeking to set aside the ex parte hearing. Its principal reason was that its counsel forgot to diarise the hearing date, and it argued that it had a good defence and should be allowed to ventilate its case. The Claimant replied that several hearing notices had been served without the Respondent ever attending court. The Court, per Radido Stephen, Judge, reviewed the record and found that service had been properly effected and acknowledged. It held that absent any explanation for the non-representation at the first scheduled hearing, the reason advanced did not merit the exercise of the Court's discretion in the Respondent's favour. The application dated 23 March 2016 was dismissed with costs to the Claimant, and judgment was set for delivery on 11 November 2016.

Key legal issues

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01

Whether counsel's failure to diarise a hearing date constitutes sufficient cause to set aside ex parte proceedings

Holding

It does not, particularly where the party also lacks an explanation for non-representation at the first hearing date and service of the hearing notice was duly acknowledged

Reasoning

The Respondent's advocate had been served with the hearing notice, as attested by affidavit of service, and had acknowledged service. The only reason advanced was that counsel forgot to diarise the date. The Court noted that the Respondent offered no explanation for the earlier non-attendance on 12 November 2015, and therefore found the reason insufficient to warrant the discretionary relief sought.

p. 1

Legal principles established

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  • A party seeking to set aside ex parte proceedings must explain non-attendance at the first scheduled hearing, not only at the rescheduled one

Court orders

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  1. 1.The motion dated 23 March 2016 is dismissed with costs to the Claimant
  2. 2.Judgment to be delivered on 11 November 2016
Jurisdiction invoked
Not expressly stated; the Court exercised its discretion under its procedural rules to set aside or maintain ex parte proceedings

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, "Christopher Kipsang Biwott v Emrock Investment Tea Factory Ltd (Cause 554 of 2014) [2016] KEELRC 643 (KLR)", Case Analysis (2016). Cause No 554 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/643/eng@2016-09-30

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