Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No 1290 of 2014· [2018] KEELRC 128 (KLR)

Hesbon Mackenzie v For You Chinese [2018] KEELRC 128 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHELEN WASILWA
500 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court reinstated a dismissed lawsuit because it was dismissed without notice to the party's current lawyer.

What this practically means

#

Executive summary

#
The Claimant, through an application filed on 6th September 2018, sought review and setting aside of the order of 20th June 2018 dismissing the claim, and reinstatement of the suit. The application, supported by an affidavit of the Claimant's Advocate Evanson Njue Ndwiga, was grounded on the absence of service of a Notice to Show Cause under Order 17 Rule 2 of the Civil Procedure Rules, and on the rule of natural justice that no party should be condemned unheard. The Respondent filed neither a response nor submissions; the application was canvassed by written submissions. The Claimant relied on Order 17 Rule 2 and Order 45 of the Civil Procedure Act, submitting that receipt of the notice to show cause by the party or its advocates was mandatory, and cited Jacob Mundia Macharia v John Waithaka Kimundu [2005] eKLR and Ernest Motanya Nyaboga v John Masita [2010] eKLR. The court noted that although Lesinko Njoroge & Gathogo Advocates were served on 3/3/2015 with the NTSC, the advocates actually on record were E. N. Njue & Company Advocates, following a Notice of Change of Advocates dated 9/2/2015. It was therefore an error to assume proper counsel had been served. The court found the Claimant was condemned unheard, exercised its discretion to review the dismissal order of 20/6/2018, and reinstated the Claimant's case on condition that it be set down for hearing within 90 days, failing which it would stand dismissed again. The judgment is dated and delivered in open court on 20th December 2018 by Lady Justice Hellen Wasilwa, with no appearance for the parties.

Key legal issues

#
01

Whether the Claimant was condemned unheard

Holding

Yes - service was effected on former advocates, not the advocates on record, so the dismissal order was made without notice to the party.

Reasoning

The Notice to Show Cause of 3/3/2015 was served on Lesinko Njoroge & Gathogo Advocates, yet the Claimant's advocates on record were E. N. Njue & Company Advocates, who filed a Notice of Change of Advocates dated 9/2/2015. The court therefore erred in assuming proper counsel had been served, violating natural justice.

p. 2
02

Whether the discretion to review should be exercised

Holding

Yes - the court exercised its discretion to review and reinstate the dismissed claim, conditioned on prompt prosecution of the suit.

Reasoning

Because the Claimant was condemned unheard, the court exercised its discretion under Order 45 of the Civil Procedure Act, finding an apparent error on the face of the record, and reinstated the claim subject to being set down for hearing within 90 days, failing which it would stand dismissed again.

p. 2

Legal principles established

#
  • Service of a notice to show cause on counsel who are no longer on record, when the court is on notice of a change of advocates, does not constitute proper service on the party.

Court orders

#
  1. 1.The Court's orders made on 20/6/2018 dismissing the Claimant's case are reviewed and the Claimant's case is reinstated
  2. 2.The reinstated case is to be set down for hearing within 90 days, in default it stands dismissed again

Authorities

#

Legislation

  • Civil Procedure ActOrder 45
  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (2)

  • Jacob Mundia Macharia v John Waithaka Kimundu
    [2005] eKLR
  • Ernest Motanya Nyaboga v John Masita
    [2010] eKLR
Jurisdiction invoked
Review jurisdiction under Order 45 of the Civil Procedure Act and Order 17 Rule 2 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hesbon Mackenzie v For You Chinese [2018] KEELRC 128 (KLR)", Case Analysis (2018). Cause No 1290 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/128/eng@2018-12-20

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