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ELRCAllowedCause No 403 of 2014· [2016] KEELRC 706 (KLR)

Geoffrey Rono v Nakuru County AP Commander & 2 others [2016] KEELRC 706 (KLR)

Employment and Labour Relations Court of Kenya
23 September 2016
724 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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This interlocutory ruling of the Employment and Labour Relations Court at Nakuru, delivered by Radido Stephen, Judge, on 23 September 2016, dealt with an application by the Respondents seeking a stay of further proceedings and of a judgment reserved for 18 March 2016, so that the Cause could proceed to defence hearing. The Cause had been fixed for hearing on 19 November 2015 in the presence of the Respondents' legal representative, but on the hearing date neither the Respondents nor their counsel attended. The Court, satisfied the date had been served, allowed the hearing to proceed ex parte, the Claimant testified and judgment was reserved. The Respondents later explained that counsel with the brief had proceeded on leave and a colleague inadvertently failed to diarise the hearing date, arguing that an advocate's mistake should not be visited on the client. The Claimant opposed, noting there is no statutory provision for staying delivery of judgment, that no proceedings were pending to stay, and that the application was filed four months after close of hearing without explanation, relying on Rule 25(2) of the Court's Rules and on Kamunyi v Macharia and Governors Balloon Safaris Ltd v Attorney General. The Court held that although no specific statutory provision empowers it to stay delivery of judgment, its inherent jurisdiction as a court of law, justice and equity permits it to do substantial justice. It allowed the application on conditions: the Respondents to file and serve witness statements by 30 September 2016 (default leading to dismissal of the application and delivery of judgment), agreed issues to be filed by 14 October 2016 (failing which the Claimant to file proposed issues by 21 October 2016), thrown away costs of Kshs 25,000/- payable before the hearing date, and a mention on 24 October 2016 for further directions.

Key legal issues

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01

Whether a court may stay its own undelivered judgment absent express statutory authority

Holding

Yes - the Court exercised its inherent jurisdiction to arrest the judgment before delivery and allow the defence hearing, on conditions

Reasoning

The Court acknowledged there is no specific statutory provision for staying delivery of judgment, but held that inherent jurisdiction permits a court of law, justice and equity to do substantial justice depending on the requirements of the case. The Respondents' advocate's inadvertent failure to diarise the hearing date, and the availability of post-judgment alternatives (set aside or review), were weighed, and the Court conditioned reopening on timelines and thrown away costs.

p. 2
02

Whether the mistake of an advocate should be visited on the client

Holding

The Court was persuaded that justice favoured allowing the Respondents' case to be heard on the merits despite the advocate's mistake

Reasoning

The Respondents' counsel explained that counsel with the brief proceeded on leave and the holding colleague inadvertently failed to include the hearing date in his diary. The Respondents urged that a mistake of an advocate ought not be visited upon the client. The Court, balancing this against the Claimant's objection to the 4-month delay, allowed the application on conditions including thrown away costs.

p. 2

Legal principles established

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  • Absence of specific statutory provision does not disable a court from granting appropriate relief in exercise of its inherent jurisdiction to do substantial justice

Court orders

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  1. 1.Respondents to file and serve witness statements before 30 September 2016
  2. 2.In default of compliance, the application to stand dismissed and judgment to be prepared and delivered appropriately
  3. 3.Agreed issues to be filed before 14 October 2016; if not agreed, Claimant to file proposed issues before 21 October 2016
  4. 4.Respondents to pay Claimant's thrown away costs assessed at Kshs 25,000/- before hearing date
  5. 5.Cause to be mentioned on 24 October 2016 for further directions

Authorities

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Legislation

  • Employment and Labour Relations Court RulesRule 25(2)

Cases cited (2)

  • Kamunyi v Macharia & Ar
    (1990) KLR 470
  • Governors Balloon Safaris Ltd v Attorney General & 2 other
    (2015) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Court; Rule 25(2) of the Employment and Labour Relations Court Rules invoked by the Claimant

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, "Geoffrey Rono v Nakuru County AP Commander & 2 others [2016] KEELRC 706 (KLR)", Case Analysis (2016). Cause No 403 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/706/eng@2016-09-23

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