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ELRCAllowedNot stated in the extracted judgment· [2016] KEELRC 894 (KLR)

Enoch Nyakundi Onchwari v Rural Electrification Authority [2016] KEELRC 894 (KLR)

Employment and Labour Relations Court
14 June 2016
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court reopened an ex parte hearing because a missed court date was an honest mistake, but ordered costs to compensate the other side.

What this practically means

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Executive summary

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The court delivered a ruling on the Respondent's Notice of Motion dated 10th February 2016, brought under Sections 3, 12(3) and 16 of the Employment & Labour Relations Act and Rules 16(1) and (2), 27(g) and 32 of the Industrial Court (Procedure) Rules 2010, seeking to set aside the proceedings and reopen the case for hearing. The application was supported by an affidavit of the process server, Godwin Maina, who swore he had misapprehended the hearing date as 10th February 2016 rather than 2nd February 2016, and had not diarized the matter. The Claimant opposed, through a replying affidavit sworn by Carolyne Muumbo Advocate, arguing the application was unmerited and prejudicial. The court reviewed the classic setting-aside discretion jurisprudence: Patel v EA Cargo Handling Services Ltd, Shah v Mbogo, Mbogo v Shah and CMC Holdings v Nzioki, applying the principle that the discretion exists to relieve against accident, inadvertence and excusable mistake. Noting that judgment had not yet been issued, that the failure to attend was attributable to the carelessness of the respondent's process server who did not diarize the hearing date, and that the application was made promptly with the delay in hearing it attributable to the court's unavailability, the court exercised its discretion to allow the respondent to cross-examine the Claimant and, if minded, to avail a witness, on a date to be fixed after the ruling. Because the reopening occasioned the Claimant additional expense, thrown away costs of Kshs. 20,000/- were awarded, payable within 14 days.

Key legal issues

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01

Whether the applicant demonstrated an excusable mistake justifying setting aside and reopening the case

Holding

Yes; the failure to attend was due to the process server's carelessness in not diarizing the hearing date, and the application was made promptly, warranting exercise of the court's discretion in the applicant's favour on terms.

Reasoning

The court applied the classic discretion principles from Patel v EA Cargo Handling, Shah v Mbogo and CMC Holdings v Nzioki. The respondent showed its agents misapprehended the hearing date as 10th February 2016 rather than 2nd February 2016 because the process server failed to diarize the correct date. The application was made with speed, and the delay in hearing it was attributable to the court. Since judgment had not been issued, and the Claimant's position was not prejudiced, the court allowed the reopening on terms, including thrown away costs.

p. 2

Legal principles established

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  • In setting aside applications the court's discretion is unlimited, save that any variation of judgment must be on just terms, the court's main concern being to do justice to the parties.
  • The discretion to set aside exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.

Court orders

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  1. 1.The Respondent is allowed to cross-examine the Claimant on a date to be set after the Ruling
  2. 2.The Respondent may, if minded, avail a witness for hearing upon reopening of the case
  3. 3.Thrown away costs of Kshs. 20,000/- awarded to the Claimant, payable within 14 days

Authorities

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Legislation

  • Employment & Labour Relations ActSections 3, 12(3) and 16
  • Industrial Court (Procedure) Rules 2010Rules 16(1) and (2), 27(g) and 32

Cases cited (4)

  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shah v Mbogo
    [1967] EA 116
  • Mbogo v Shah
    [1968] EA 93
  • CMC Holdings v Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Sections 3, 12(3) and 16 of the Employment & Labour Relations Act, Rules 16(1) and (2), 27(g) and 32 of the Industrial Court (Procedure) Rules 2010 and the inherent power of the court

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, "Enoch Nyakundi Onchwari v Rural Electrification Authority [2016] KEELRC 894 (KLR)", Case Analysis (2016). Not stated in the extracted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/894/eng@2016-06-14

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