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ELRCDismissedNot stated in the excerpt· [2018] KEELRC 733 (KLR)

Zakaria Jilo Kitoko & John Duko Rhigho v African Muslim Agency [2018] KEELRC 733 (KLR)

Employment and Labour Relations Court
1 November 2018
833 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 overturn a default judgment, ruling that a company that ignored court papers for over a year cannot blame its lawyer.

What this practically means

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Executive summary

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The Respondent moved the court by Notice of Motion dated 16th August 2018 seeking a stay of the ex parte judgment delivered on 8th November 2017 following formal proof, together with leave to file its Reply out of time. It explained that its then advocate inadvertently misfiled the pleadings, left the firm and relocated to the United Kingdom without handing over the file; the pleadings were allegedly discovered during a firm audit in June 2018, whereupon a Memorandum of Appearance and Reply were filed. The Claimants opposed, deponing that the Respondent was served with summons on 16th May 2017 but delayed until July 2017 to instruct an advocate, then ignored the Bill of Costs and Notice of Taxation served on 11th May 2018, and instead filed pleadings without leave in a concluded matter. The court, per Linnet J, applied Mbogo & another v Shah, holding that the discretion to set aside ex parte proceedings exists to avert injustice arising from inadvertent or excusable mistake, not to delay or obstruct justice. On the facts, the Respondent sat on the summons for at least two months, failed to follow up the case, and ignored the taxation documents - conduct placing it outside the protection of the principle that an advocate's mistake should not be visited on an innocent litigant. The application was held to be an abuse of the court process, was dismissed with costs to the Claimants on 1st November 2018 at Mombasa.

Key legal issues

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01

Whether an ex parte judgment should be set aside on the ground of an advocate's mistake

Holding

No - the Respondent's own conduct (delay in instructing an advocate, failure to follow up, ignoring service of the Bill of Costs) showed the mistake was not excusable

Reasoning

The court accepted it was served with summons in May 2017 but waited two months before instructing an advocate. Even after instruction, it did not follow up the matter, and it ignored the Bill of Costs and Notice of Taxation served in May 2018, instead filing pleadings without leave in an already concluded matter. Such a litigant falls outside the protection of the Mbogo v Shah discretion, and the application amounted to an abuse of process.

p. 2
02

Whether the mistake of an advocate should be visited upon an innocent litigant

Holding

The principle was rejected on the facts because the Respondent itself contributed to the delay and was not an innocent litigant

Reasoning

The Respondent argued that a mistake of an advocate should not be visited on an innocent litigant, invoking Mbogo & another v Shah. The court held that the discretion under that case is meant to avert injustice from inadvertent or excusable mistake, not to obstruct justice. Here the Respondent's own inaction - holding the summons for two months and ignoring subsequent service - meant the equity of the principle did not avail it.

p. 2

Legal principles established

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  • The court's discretion to set aside ex parte proceedings exists to avert injustice from inadvertent or excusable mistake, and must not be used to delay or obstruct justice

Court orders

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  1. 1.The Respondent's Notice of Motion dated 16th August 2018 is dismissed
  2. 2.Costs of the application to the Claimants

Authorities

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Cases cited (1)

  • Mbogo & another v Shah
    [1968] EA 93
Jurisdiction invoked
Inherent discretion of the court to set aside ex parte proceedings and judgment

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, "Zakaria Jilo Kitoko & John Duko Rhigho v African Muslim Agency [2018] KEELRC 733 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/733/eng@2018-11-01

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