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ELRCAllowedNot stated in the judgment (Notice of Motion dated 15th March, 2016)· [2016] KEELRC 1114 (KLR)

Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Board of Management Ilmotiook Secondary school [2016] KEELRC 1114 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
6 June 2016
DMD.K. Njagi Marete
1,022 words in judgment
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The bottom line

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A Kenyan employment court threw out a default judgment because the worker's lawyer's mistakes shouldn't punish the client.

What this practically means

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Executive summary

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This was a Notice of Motion dated 15th March, 2016 in which the respondent/applicant sought certification as urgent, stay of execution of a judgment, stay of taxation of costs, review and setting aside of the proceedings and judgment delivered against the respondent, a fresh inter partes hearing, and leave to file a defence and witness statements. The application was supported by the affidavit of Joseph Mabwai and was premised on Articles 48 and 50 of the Constitution, irregularity of the proceedings, errors of law and procedure, non-service on some occasions, and the principle that the mistakes of the respondent's former advocates should not be visited on the respondent. The claimant/respondent opposed the application through Grounds of Opposition and a Verifying Affidavit, contending that the motion was misconceived and incurably defective, that the Civil Procedure Act and Rules did not apply in the Industrial Court, that the application offended Rule 32 of the Industrial Court (Procedure) Rules, 2010, Section 16 of the Industrial Court Act, Section 14 of the Labour Institutions Act, and Articles 162(2)(a) and (3) of the Constitution, and that the applicant had been summoned for a hearing on 19th August, 2015 but failed to appear. The court, per D.K.Njagi Marete J, held the application fairly simple, found that the opposition offered no concrete grounds for refusal, and applied the trite principle that the default or failure of counsel shall not be visited on the client. The court allowed the application: it stayed execution of the judgment delivered on 11th November, 2015, set the claim for fresh inter partes hearing, granted leave to file a defence and witness statements, and ordered each party to bear its own costs of the application.

Key legal issues

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Whether the applicant's lapse in prosecution of the claim through counsel's failure justified reopening the judgment

Holding

The application was allowed; stay of execution was granted, the judgment effectively reopened by setting the claim for fresh hearing, and leave given to file a defence and witness statements.

Reasoning

The court treated the application as a simple one: the applicant sought stay on the basis of a lapse occurring in her prosecution of the claim, her counsel having failed to prosecute the matter. The claimant's opposition, by way of grounds of opposition, was found to offer no concrete grounds for refusal. Applying the principle that counsel's default should not be visited on the client, the court was inclined to allow the application in full and made the orders sought on the motion.

p. 3

Legal principles established

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  • The default or failure of counsel shall not be visited on the client.

Court orders

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  1. 1.Stay of execution of the judgment of the court delivered on 11th November, 2015
  2. 2.The claim set down for fresh inter partes hearing
  3. 3.The respondent granted leave to file a defence and witness statements for purposes of the hearing
  4. 4.Each party to bear its own costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 162(2)(a) and (3)
  • Industrial Court (Procedure) Rules, 2010Rule 13(3)
  • Industrial Court (Procedure) Rules, 2010Rule 32
  • Civil Procedure Act, Cap 21, Laws of KenyaGeneral
  • Civil Procedure Rules, 2010General
  • Industrial Court Act, No. 20 of 2011, Laws of KenyaSections 3, 4, 16 and 21(4)
  • Labour Institutions Act, 2007, Laws of KenyaSection 14
Jurisdiction invoked
Industrial Court Act, No. 20 of 2011 and Industrial Court (Procedure) Rules, 2010; Constitution Articles 48, 50 invoked in grounds

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, "Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Board of Management Ilmotiook Secondary school [2016] KEELRC 1114 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 15th March, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1114/eng@2016-06-06

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