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ELRCDismissed(Not stated in judgment)· [2016] KEELRC 1769 (KLR)

Cyrus Nyongesa Simiyu v Concepts African Limited [2016] KEELRC 1769 (KLR)

Employment and Labour Relations Court
28 January 2016
HWHellen Wasilwa
744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to set aside a judgment because the losing party's lawyers were present throughout, ruling grievances with counsel belong at the Law Society of Kenya.

What this practically means

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Executive summary

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The Respondent Applicants brought a Notice of Motion dated 17th August 2015 seeking, among other things, leave for the firm of Kairu Mbuthia & Kiingati Advocates to come on record in place of Njoroge O. Kimani & Company Advocates, a stay of execution of the judgment delivered by Lady Justice Hellen Wasilwa on 30th June 2015 (in which Kshs.533,970/= was awarded against them), setting aside of that judgment, and re-opening of their case to allow their witnesses to testify. The application, supported by the affidavit of Dr. Kenneth Kibe, was premised on the assertion that the Applicants were never informed of the proceedings or the entry of judgment until 1st July 2015, and were never given an opportunity to present their evidence. The Claimant Respondents opposed the application through a replying affidavit sworn by the Claimant, deponing that the Respondents were present in court on 19th May 2015 when the judgment date was given and on 30th June 2015 when judgment was read. The court examined its record and found that on 21st April 2015 Mr. Kariuki held brief for the Respondent when the Claimant testified and the Respondent closed its case; on 19th May 2015 Miss Omesa held brief for the Respondent when directions on submissions were given; and on 30th June 2015 Kimetto held brief for the Respondent when judgment was delivered. The court held that the Applicants were always present or represented, that the assertion of no notice was false, and that any grievance against counsel holding their brief lay with the Law Society of Kenya's disciplinary mechanisms. The application was dismissed with costs to the Claimant Respondents.

Key legal issues

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01

Whether the Applicants had notice of the hearing and judgment

Holding

The Applicants or their counsel were present or represented at every material stage, so the claim of no notice failed

Reasoning

The court examined its own record: on 21.4.2015 Mr. Kariuki held brief for Kiunga for the Respondent when the Claimant testified and the Respondent closed its case; on 19.5.2015 Miss Omesa held brief when directions on submissions were given; and on 30.6.2015 Kimetto held brief for the Respondent when judgment was read. The assertion of no notice was therefore false.

p. 2
02

Whether the judgment should be set aside and the case re-opened

Holding

No merit; the Applicant was afforded a full opportunity to be heard

Reasoning

The court found the Respondents closed their case by electing to rely on what was on record, directions on submissions were issued in their presence, and judgment was delivered with their counsel present. Setting aside a judgment is discretionary and in the interest of justice, but there was no failure of natural justice or denial of hearing to justify reopening the case.

p. 2

Legal principles established

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  • A party represented by counsel who holds their brief is bound by that representation; grievances against counsel are matters for disciplinary mechanisms, not for setting aside a judgment

Court orders

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  1. 1.The application dated 17.8.2015 is dismissed
  2. 2.Costs of the application awarded to the Claimant Respondents
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court to set aside judgments and grant stay of execution in the interest of justice

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, "Cyrus Nyongesa Simiyu v Concepts African Limited [2016] KEELRC 1769 (KLR)", Case Analysis (2016). (Not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1769/eng@2016-01-28

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