Sammy Nzioka Bita & 3 others v Casablanca Restaurant Club & 2 others [2016] KEELRC 720 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent demonstrated sufficient reason under Rule 25(2) of the Industrial Court Procedure Rules to reopen the hearing
The application failed; no sufficient reason was shown. The applicant never filed witness statements, never swore an affidavit explaining the mistake, and counsel stated on record twice that no witnesses would be called.
Rule 25(2) permits reopening only where the court considers it fit or on review grounds under Rule 32(1), the threshold being sufficient reason. The applicant filed no list of witnesses or statements and no affidavit from herself or the advocates allegedly at fault. Counsel's on-record statements that no witnesses would be called bound the party, and the one-month delay in bringing the motion showed it was an afterthought.
Whether the failure to call defence witnesses was an excusable mistake of counsel
No; it was a deliberate choice, not a communication breakdown or excusable mistake.
The court distinguished the cited authorities because counsel who appeared at the hearing had full instructions and expressly elected to close the defence case without witnesses. The delay of 35 days in filing the motion undermined the mistake narrative, and the applicant's broader conduct - late defence, no witness statements, unpaid adjournment fees, non-attendance and late submissions - showed she did not take the proceedings seriously.
Legal principles established
#- The threshold for reopening a hearing under Rule 25 of the Industrial Court Procedure Rules is sufficient reason or a ground for review under Rule 32(1)
- A party who, through counsel, elects not to call witnesses cannot later blame counsel's mistake to reopen the hearing
Court orders
#- 1.The Notice of Motion dated 4.4.2016 is dismissed with costs to the claimant
- 2.The respondent is directed to pay the Court Adjournment Fees of Kshs 1,000 ordered on 23.9.2015 within 7 days of the ruling
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya and Rule 25 of the Industrial Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Nzioka Bita & 3 others v Casablanca Restaurant Club & 2 others [2016] KEELRC 720 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/720/eng@2016-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.