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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1205 (KLR)

Hildah Mwangale v Fiyabi Risiquot [2018] KEELRC 1205 (KLR)

Employment and Labour Relations Court
18 May 2018
MMM. Mbaru
1,657 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 set aside its judgment because a filed defence was missing from the file, but refused to erase the claimant's unchallenged evidence.

What this practically means

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Executive summary

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The respondent, Fiyabi Risiquot, applied by Notice of Motion dated 31st October 2017 under Rule 33 of the Employment and Labour Relations Court Procedure Rules, 2016 seeking review of the judgment delivered on 8th June 2017 in a wrongful termination claim, arguing inter alia that the judgment erroneously recorded that she had filed no defence; that her defence denied employing the claimant (a female adult sued instead of a male employer); that the claimant's evidence should be expunged as unpleaded and perjured; and that judgment be entered for her. The claimant opposed, contending the application was an afterthought - the respondent had already sought to set aside the judgment in June 2017 and had participated in taxation. The court framed three issues: whether the judgment should be reviewed, whether the defence should be traced and considered, and whether the claimant's evidence should be expunged. The court found that a Reply to the Statement of Claim stamped 10th April 2017 existed but was missing from the court file; the error in the judgment stating that no defence was filed warranted review. However, the claimant's evidence would not be expunged: the respondent failed to attend the hearing without explanation, leaving the claimant's evidence unchallenged, and any variance between claim and defence could be addressed by allowing the defence to be argued. The court set aside the judgment to allow the defence and the respondent's case to be called, preserved the claim and the claimant's evidence, directed the respondent to supply a copy of the Reply for the formal record, and awarded costs to the claimant.

Key legal issues

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01

Whether an error apparent on the face of the judgment existed warranting review

Holding

Yes - the judgment recorded that no defence was filed, yet a stamped Reply to the Statement of Claim dated 10th April 2017 existed, though missing from the court file.

Reasoning

Both parties acknowledged the defence was filed following the directions of 23rd March 2017. The court record was missing, but the court stamp on the attached Reply showed it had been filed. The failure to consider the filed defence was an error on the face of the judgment, justifying review under Rule 33.

p. 2
02

Whether the unconsidered defence should be traced and taken into account

Holding

Yes - the defence was to be placed on the record and the judgment set aside to allow the defence to be called.

Reasoning

Since the defence had been filed and served but was not available to the judge at the time of writing the judgment, fairness required that it be placed on the file and the respondent given a chance to urge its case.

p. 2
03

Whether the claimant's evidence should be expunged as unpleaded and perjured

Holding

No - the evidence stands; the respondent's unexplained absence at the hearing forecloses that attack.

Reasoning

The respondent was directed to file a defence and attend the hearing but did not attend, leaving the claimant's evidence unchallenged. Matters such as the identity of the employer could be raised by arguing the case on the defence, not by expunging the claimant's testimony.

p. 3

Legal principles established

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  • Rule 33 permits review of a judgment where there is an error or mistake apparent on its face, including where a filed defence was not considered.
  • A party who fails to attend the hearing and does not challenge the opposing party's evidence cannot later raise matters that should have been put in cross-examination.
  • A court is responsible for keeping its records safe and available before judgment is written.

Court orders

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  1. 1.Judgment set aside to allow for the call of the defence and its case
  2. 2.The claim and the evidence by the claimant preserved as part of the court record
  3. 3.The Respondent to make a copy of the filed Reply to the Statement of Claim available to the court as part of its formal records
  4. 4.Costs awarded to the claimant

Authorities

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Legislation

  • Employment and Labour Relations Court Procedure Rules, 2016Rule 33
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court Procedure Rules, 2016 (review of the court's own 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, "Hildah Mwangale v Fiyabi Risiquot [2018] KEELRC 1205 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1205/eng@2018-05-18

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