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ELRCDismissedNot stated in the judgment· [2016] KEELRC 1212 (KLR)

Edward Rukwaro v CIC Insurance Group Limited [2016] KEELRC 1212 (KLR)

Employment and Labour Relations Court
23 March 2016
MMM. Mbaru
2,287 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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The Respondent (former employer) filed a Notice of Motion dated 5th October 2015 seeking to set aside orders made on 5th October 2015 allowing the Claimant's application of 18th September 2015 ex parte. The Claimant, a former employee, had obtained orders restraining the Respondent from repossessing his motor vehicle KBW 831Q and directing it to issue a tabulation of his terminal dues and car loan documents. The Respondent argued that its counsel was delayed after attending the wrong court building, that the Claimant concealed material facts (an outstanding loan of Kshs.5,600,000), and that mistake of counsel should not be visited on the client, relying on Shah v Mbogo and Philip Chemwolo. The Claimant opposed, showing service was effected and acknowledged on 18th September 2015, the cause list was clear, and there was no opposition on record when the orders issued. The court noted that the Respondent delayed filing responses until the hearing date, only entered appearance on 2nd November 2015 (thus lacking standing until then), filed no statement of defence, and failed to comply with directions to serve the Claimant. Applying the principle that the conduct of an applicant for setting aside is material, the court found no justifiable reason to exercise discretion in the Respondent's favour. The application dated 5th October 2015 was dismissed with costs to the Claimant, and judgment was delivered in open court at Nairobi on 23rd March 2016.

Key legal issues

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01

Whether the mistake of counsel in attending the wrong court building should be visited on the Respondent

Holding

No: the Respondent was served in good time on 18th September 2015 and had ample opportunity to file responses and enter appearance; its delay and failure to comply with the court's directions meant the dismissal of its application

Reasoning

The court acknowledged the settled principle that mistake of counsel should not be visited on a client, as urged by the Respondent's authorities (Shah v Mbogo, Philip Chemwolo). However, the discretion is tempered by the applicant's conduct. Service was acknowledged on 18th September 2015, yet appearance was only filed on 2nd November 2015, no statement of defence was on record, and directions to serve documents were ignored. The lapses were unexplained and evidenced no good faith, disentitling the Respondent to discretionary relief.

p. 3
02

Whether the orders of 5th October 2015 were properly granted as the application was unopposed

Holding

Yes; on the record the Respondent had no appearance filed and the Claimant's application was properly allowed as unopposed

Reasoning

The Affidavit of Service by Anthony Thuo confirmed service and acknowledgement of the application and orders on 18th September 2015. On 5th October 2015 the Claimant was in court and there was no appearance for the Respondent. The court, satisfied the Respondent was aware of the hearing and chose to be absent, allowed the application as unopposed. The cause list indicated the correct courtroom and building.

p. 3
03

Whether the Respondent, having not entered appearance until 2nd November 2015, had standing to move the court

Holding

No; up to 2nd November 2015 the Respondent's advocates lacked proper standing before the court, and the lapse was unexplained

Reasoning

Although the Respondent filed Grounds of Opposition and the present application on 5th October 2015, no memorandum of appearance was filed until 2nd November 2015, and the Claimant was not served with the application until directions were given on 13th October 2015. Without an appearance the Respondent had no right of audience, and no explanation was offered for the lapse or for the absence of any statement of defence thereafter.

p. 4

Legal principles established

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  • In an application to set aside ex parte orders, the conduct of the applicant is a material consideration for the court's discretion
  • A party that has not filed a memorandum of appearance lacks a right of audience before the court

Court orders

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  1. 1.The application dated 5th October 2015 is dismissed
  2. 2.Costs to the claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 31(b)
  • Constitution of Kenya, 2010Article 40

Cases cited (10)

  • Philip Chemwolo & Another versus Augustine Kubede
    [1986] eKLR
  • Lazarus Kibui Ndegwa versus Labule Okello Litwa
    [2015] eKLR
  • Shah versus Mbogo & Another
    (1967) EA
  • Patel versus E.A. Cargo Handling Services Ltd
  • CMC Holding Ltd versus Nzioki
    [2004] eKLR
  • Kenya Ports Authority versus Kustron (K) Ltd
    [1997] eKLR
  • Crush Security Guards & Another versus Kenya Power & Lighting Co. Ltd
    HCCC No.108 of 2007 (Eldoret)
  • Kisii Petroleum Products Ltd versus Kobil Petroleum Ltd & 2 Others
    Nairobi Civil Appeal, Civil Appl. No.218 of 2005
  • Josphat Muthui versus Ezeetec Ltd
    Cause No.1224 of 2012
  • Michael Njai versus Juan Torres and Another
    Cause No. 1279 of 2013
Jurisdiction invoked
Employment and Labour Relations Court, hearing a notice of motion within an employment cause

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, "Edward Rukwaro v CIC Insurance Group Limited [2016] KEELRC 1212 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1212/eng@2016-03-23

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