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ELRCAllowedNot stated in the judgment· [2016] KEELRC 928 (KLR)

Enoch Nyakundi Onchwari v Rural Electrification Authority [2016] KEELRC 928 (KLR)

Employment and Labour Relations Court (Industrial 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 a case missed due to a diarising error, showing courts prioritise fair hearings over punishing honest mistakes.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by Nzioki wa Makau J determines 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, 27(g) and 32 of the Industrial Court (Procedure) Rules 2010, seeking to set aside the proceedings and reopen the case for hearing. The Respondent explained that its agents and counsel misapprehended the hearing date as 10th February 2016 instead of 2nd February 2016, because its process server failed to diarize the correct date, and the matter consequently proceeded in its absence. The Claimant, through a replying affidavit sworn by Carolyne Muumbo Advocate, opposed the application as unmerited, incompetent and prejudicial. The court reviewed the established principles on setting aside ex parte proceedings, drawing on Patel v EA Cargo Handling Services Ltd, Shah v Mbogo, Mbogo v Shah and CMC Holdings v Nzioki, which emphasize that the discretion is exercised to avoid injustice arising from excusable mistake, and must consider both the reason for non-attendance and the presence of triable issues. Finding that the failure to attend was attributable to the carelessness of the Respondent's process server, that the application was made promptly, and that the Claimant had not yet been unseated since judgment had not been delivered, the court allowed the application, permitting the Respondent to cross-examine the Claimant and, if minded, avail a witness. The Claimant was awarded thrown away costs of Kshs. 20,000/- payable within 14 days.

Key legal issues

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01

Whether the failure by the Respondent's counsel to attend the hearing on 2nd February 2016 amounted to an excusable mistake warranting setting aside of the proceedings

Holding

Yes; the failure was attributable to the carelessness of the Respondent's process server who failed to diarize the hearing date, and the application was made promptly

Reasoning

The court found that the Respondent's agents misapprehended the hearing date as 10th February 2016 rather than 2nd February 2016 because the process server did not enter the date fixed for hearing. The application to set aside was made with speed, and the delay in hearing it was due to the absence of the trial court. Since the Claimant had not yet been unseated - judgment had not been issued - the court exercised its discretion to allow the Respondent to cross-examine the Claimant and avail a witness, cushioning the Claimant with thrown away costs.

p. 2

Legal principles established

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  • In setting aside applications, the court's discretion is wide and its main concern is to do justice to the parties
  • The discretion to set aside exists to relieve a litigant from injustice caused by excusable mistake or inadvertence, but not to assist one who deliberately obstructs or delays the course of justice

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 and, if minded, avail a witness for hearing
  2. 2.Thrown away costs of Kshs. 20,000/- awarded to the Claimant, to be paid within 14 days

Authorities

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Legislation

  • Employment & Labour Relations ActSection 3
  • Employment & Labour Relations ActSection 12(3)
  • Employment & Labour Relations ActSection 16
  • Industrial Court (Procedure) Rules 2010Rule 16(1) and (2)
  • Industrial Court (Procedure) Rules 2010Rule 27(g)
  • Industrial Court (Procedure) Rules 2010Rule 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 928 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/928/eng@2016-06-14

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