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ELRCPartially AllowedNot stated in the excerpt provided· [2017] KEELRC 1852 (KLR)

Shem Opiyo Ogango v Shiva Carriers Limited (Cause 1207 of 2010) (Employment and Labour) [2017] KEELRC 1852 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
24 January 2017
553 words in judgment
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The bottom line

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Kenya's Employment Court set aside an order made when the case wasn't on the hearing list, confirming parties deserve a fair chance to be heard.

What this practically means

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Executive summary

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The Claimant brought a review application dated 18.9.2015, under Rule 32 of the Industrial Court (Procedure) Rules 2010 and Section 12(3) of the Industrial Court Act 2011, seeking review of the Court's Ruling of 22.9.2014, which had allowed the Respondent's application dated 4.8.2014 in the Claimant's absence. The Claimant explained that his counsel, Odhiambo Advocate, had instructed Mr. Rakoro Advocate to hold his brief on 22.9.2014 with instructions to seek disposal by written submissions; Rakoro informed him the matter was not listed, producing the Cause List for that day. A court clerk, Nelson Othoo, made repeated attempts to trace the file for fixing of a hearing date, and counsel even wrote to the Deputy Registrar. Only in early August 2015 was the file traced, revealing that the application had in fact been heard and allowed on 22.9.2014. The Respondent opposed the review, contending the order of 6.8.2014 directing inter partes hearing on 22.9.2014 was served, that the application was unopposed, that the review application filed on 1.10.2015 was inordinately delayed, and that the decretal sum of Kshs 793,303 had been settled in full, leaving nothing for determination. Justice Hellen Wasilwa, reading the record, found from the annexed Cause List that the application was not listed for hearing on 22.9.2014. On that basis she reversed and set aside the order of 22.9.2014 allowing the application in terms of prayers 3, 4 and 5, and permitted the application to be set down for hearing inter partes. Judgment delivered in open court on 24 January 2017.

Key legal issues

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01

Whether the non-attendance of the Claimant's Advocate on 22.9.2014 justified review of the Ruling of that date

Holding

Yes - the Cause List showed the application was not listed for hearing on 22.9.2014, so the non-attendance was not intentional and the order made that day was reversed and set aside

Reasoning

The Court examined the record and the annexed Cause List, which demonstrated that the application was not listed for hearing on 22.9.2014 despite counsel's efforts to fix it. The Claimant's counsel had instructed holding counsel and a court clerk to trace the file, and had written to the Deputy Registrar for a hearing date. Given this, the ex parte allowance of the Respondent's application on a date when it was not listed constituted an error apparent on the face of the record warranting review.

p. 2

Legal principles established

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  • Where an application was not listed for hearing on the date it was decided, the resulting order is an error apparent on the face of the record and may be reviewed and set aside

Court orders

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  1. 1.The order given on 22.9.2014 allowing the Respondent's Application in terms of prayers 3, 4 and 5 is reversed and set aside
  2. 2.The Respondent's Application dated 4.8.2014 may be set down for hearing inter partes

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 32
  • Industrial Court Act 2011Section 12(3)
Jurisdiction invoked
Rule 32 of the Industrial Court (Procedure) Rules 2010 and Section 12(3) of the Industrial Court Act 2011

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, "Shem Opiyo Ogango v Shiva Carriers Limited (Cause 1207 of 2010)  (Employment and Labour) [2017] KEELRC 1852 (KLR)", Case Analysis (2017). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1852/eng@2017-01-24

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