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ELRCAllowedApplication dated 20th February, 2017· [2018] KEELRC 1907 (KLR)

Joyce N. Simitu v Stephen O. Mallowah & 2 others [2018] KEELRC 1907 (KLR)

Employment and Labour Relations Court
30 May 2018
MNMathews N. NdumaMOMaureen Onyango
252 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an interlocutory application dated 20th February 2017 in which the Respondent (through counsel Mr. Munyua Ezekiel Njagi of Rachier & Amollo Advocates) asked the Employment and Labour Relations Court to set aside its orders of 16th January 2017, by which the Claimant's case had been closed before cross-examination by the Respondent's counsel and the defence case closed in default of attendance. The Claimant/Respondent filed a replying affidavit in opposition. Considering the application and the affidavit, the court was satisfied that the Respondent's advocate developed abdominal complications on the eve of the hearing (the night of 15th January 2017), was rushed to hospital on 16th January 2017 and admitted; he was therefore unable not only to attend court as scheduled but also to reach his office to arrange alternative attendance by colleagues. On that factual basis the court held that the application succeeded. It varied its orders of 16th January 2017, re-opened the case so that the Respondent's advocate could cross-examine the Claimant and present the Respondent's case, and stayed the directions to file submissions pending closure of the defence case. It further directed the Principal Judge to allocate the matter to any other Judge for continued hearing, and awarded costs in the cause. The judgment was signed by Mathews N. Nduma, Judge in Kisumu on 24th April 2018 and delivered in Nairobi by Maureen Onyango, Judge on 30th May 2018.

Key legal issues

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01

Whether closure of the parties' cases in default of attendance should be set aside

Holding

Yes - the failure to attend was occasioned by the advocate's sudden hospitalisation, a sufficient reason to vary the orders and re-open the case

Reasoning

The court was satisfied, on the application and the replying affidavit, that the Respondent's advocate developed abdominal complications on the eve of the hearing, was rushed to hospital and admitted, so he could neither attend court nor arrange alternative attendance by colleagues. On that basis the court varied its orders of 16th January 2017, re-opened the case, stayed the directions on submissions, and directed reallocation to another Judge for continued hearing, with costs in the cause.

p. 1

Legal principles established

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  • Where an advocate's failure to attend court is attributable to sudden illness beyond his control, the court will vary orders of default closure and re-open the case to permit cross-examination and presentation of the defence.

Court orders

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  1. 1.Orders of 16th January 2017 varied
  2. 2.Case re-opened so that the advocate for the Respondent/Applicant may cross-examine the Claimant and present the Respondent's case
  3. 3.Directions to file submissions stayed pending closure of the defence case
  4. 4.Principal Judge to allocate the matter to any other Judge for continued hearing
  5. 5.Costs in the cause
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court to vary its own orders (unspecified provision)

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, "Joyce N. Simitu v Stephen O. Mallowah & 2 others [2018] KEELRC 1907 (KLR)", Case Analysis (2018). Application dated 20th February, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1907/eng@2018-05-30

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