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ELRCDismissedNot stated in the judgment· [2016] KEELRC 720 (KLR)

Sammy Nzioka Bita & 3 others v Casablanca Restaurant Club & 2 others [2016] KEELRC 720 (KLR)

Employment and Labour Relations Court (Industrial Court)
9 September 2016
1,325 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 ruling by O. Makau J of the Industrial Court (Employment and Labour Relations Court) disposes of a Notice of Motion dated 4.4.2016 by the 1st respondent seeking, under Article 159 of the Constitution and Rule 25 of the Industrial Court (Procedure) Rules, the reopening of the hearing and leave to call defence witnesses, on the ground that failure to call witnesses resulted from a counsel's mistake - a chain of instructed brief-holders (Mr. Amuga to Mr. Machiaho to Mr. Ratemo) allegedly causing a communication breakdown. The claimants opposed, asserting the respondents never intended to call witnesses, having filed no witness statements, and that counsel stated twice on record that no witnesses would be called; they also cited the respondent's delay and unpaid adjournment fees. The court framed a single issue: whether the threshold for reopening was met. Applying Rule 25(2), it held the threshold is 'sufficient reason' or a Rule 32(1) review ground. The applicant filed no list of witnesses or statements, no supporting affidavit from herself or the advocates concerned, and counsel had expressly elected to close the case without witnesses. The motion, filed 35 days after the hearing, was an afterthought marked by inordinate delay. The court distinguished the authorities cited by both sides, holding the failure to call witnesses was the culmination of deliberate choices, not an excusable mistake. The motion was dismissed with costs to the claimant, and the respondent was directed to pay adjournment fees of Kshs 1,000 within 7 days.

Key legal issues

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01

Whether the 1st respondent demonstrated sufficient reason under Rule 25(2) of the Industrial Court Procedure Rules to reopen the hearing

Holding

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.

Reasoning

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.

p. 3
02

Whether the failure to call defence witnesses was an excusable mistake of counsel

Holding

No; it was a deliberate choice, not a communication breakdown or excusable mistake.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 4.4.2016 is dismissed with costs to the claimant
  2. 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

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Industrial Court (Procedure) RulesRule 25(2)
  • Industrial Court (Procedure) RulesRule 32(1)

Cases cited (3)

  • Commissioner of Income Tax vs Kencell Communication Ltd
    (2013) eKLR
  • Elvis Isangi Mwandembo vs Steel Makers Ltd
    (2015) eKLR
  • Shah vs Mbogo & Another
    (1967) E.A 116
Jurisdiction invoked
Article 159 of the Constitution of Kenya and Rule 25 of the Industrial Court (Procedure) Rules

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, "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.