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ELRCPartially AllowedNot stated in the extract (ELRC suit filed 28.4.2017)· [2018] KEELRC 1106 (KLR)

George Buoro v Kenindia Assurance Company Limited [2018] KEELRC 1106 (KLR)

Employment and Labour Relations Court
28 September 2018
OMOnesmus N. Makau
1,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court let an employer file its late defence because it raised real issues, but ordered its lawyers to personally pay Ksh.20,000 in costs.

What this practically means

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Executive summary

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The claimant sued on 28.4.2017 seeking damages for unfair termination of employment by the respondent. The respondent entered appearance on 4.9.2017 but failed to file a defence, and on 8.5.2018 the court directed the suit to proceed by formal proof. The respondent then filed a Notice of Motion dated 17.5.2018 seeking stay of the hearing, leave to file the defence and accompanying documents out of time, and directions as to hearing. The delay was attributed to counsel, Ms Lorraine Oyombe, proceeding on maternity leave in December 2017 and not resuming. The claimant opposed, pointing out an unexplained delay of roughly nine months from service of summons, the absence of an affidavit from Ms Oyombe, and the overriding objective under section 3 of the ELRC Act, and relied on authorities where leave was refused. The court framed one issue: whether the delay was excusable. It held the delay inordinate and unexplained for about three months before counsel's leave, finding the defence legal team (the Federation of Kenya Employers) negligent. However, the defence raised triable issues on compliance with section 40 of the Employment Act on redundancy, and the claimant would suffer no prejudice beyond trial delay. The court exercised its discretion in favour of the respondent, allowed the application by granting prayer 2 of the motion, directed the suit to proceed inter partes on merits, and personally condemned the defence advocates (FKE) to pay thrown away costs of Ksh.20,000 within 14 days, default being executable.

Key legal issues

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01

Whether the delay in filing the defence was excusable

Holding

The delay was inordinate and poorly explained, but excusable on account of the advocate's negligence and the defence raising triable issues; discretion exercised in favour of the respondent with thrown away costs against FKE personally

Reasoning

The court found about three months unaccounted for between entry of appearance and counsel's maternity leave, and a further two months after the mention notice. The legal team acted negligently. However, the defence raised triable issues on redundancy procedure under section 40 of the Employment Act, and the claimant would suffer no prejudice beyond trial delay, remediable by thrown away costs against the negligent advocates.

p. 3
02

Whether the defence raises triable issues warranting a hearing on the merits

Holding

Yes; the defence pleads compliance with section 40 of the Employment Act on redundancy

Reasoning

The court examined the late defence and found it raised triable issues since the suit alleged procedural unfairness in termination through redundancy, and the defence pleaded that the section 40 procedure was followed with supporting correspondence. This weighed in favour of granting leave so the suit would be determined on merit rather than by default.

p. 4

Legal principles established

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  • A party may be excused delay in filing a defence where the delay is attributable to the advocate's professional negligence and the defence raises triable issues, with prejudice remedied by thrown away costs against the negligent advocate

Court orders

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  1. 1.Application allowed by granting prayer 2 of the Notice of Motion dated 22.5.2018 (defence and accompanying documents deemed properly filed and served)
  2. 2.Suit to proceed inter partes on merits on a date to be fixed at the registry
  3. 3.Defence Advocates, Federation of Kenya Employers (FKE), condemned personally to pay the claimant thrown away costs of Ksh.20,000 within 14 days, in default the claimant at liberty to execute

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 50
  • Employment and Labour Relations Court Actsection 3
  • Employment Actsection 40

Cases cited (4)

  • Chairman, Secretary and Treasurer of Sir Ali Bin Salim Primary School & another Vs Francis Bahatic Diwani & 2 others
    [2014]eKLR
  • Winnie Wambui Kibinge & 2 others Vs Match Electricals Limited
    [2012]eKLR
  • Maria Vs Muriuki
    [1984]KLR 407
  • Beatrice Wanjiru Kamuri Vs John Kibira Muriuki
    [2016]e KLR
Jurisdiction invoked
Employment and Labour Relations Court Act (including section 3, overriding objective); Article 159(2)(d) and Article 50 of the Constitution invoked

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, "George Buoro v Kenindia Assurance Company Limited [2018] KEELRC 1106 (KLR)", Case Analysis (2018). Not stated in the extract (ELRC suit filed 28.4.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1106/eng@2018-09-28

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