Shadrack Otuoma Khamla & 7 others v Aniket Enterprises Limited [2018] KEELRC 1984 (KLR)
The bottom line
#A Kenyan employment court refused to undo a hearing an employer skipped, ruling the right to be heard was wasted, not denied.
What this practically means
#Executive summary
#Key legal issues
#Whether the hearing of 13 March 2018 should be set aside for want of the Respondent's participation
No; the Respondent had squandered its opportunity to be heard and the Court declined to exercise its discretion in its favour.
The Cause had come before the Court about 7 times, yet the Respondent's advocate attended only twice. The Respondent ignored repeated invitations to fix mutually convenient hearing dates on four occasions. It was served with a hearing notice about four months in advance, and an advocate holding brief sat through the Claimant's testimony but declined to cross-examine. Its claim that its advocate was in the High Court in Malindi was unsupported by any cause list or court file extracts. The Court found the Respondent was not keen to have the Cause determined expeditiously.
Whether the Respondent's right to be heard was infringed
It was not; the opportunity to be heard existed and was not taken up.
The Respondent argued the hearing proceeded without representation in violation of its right to be heard. The Court found the Respondent had sufficient notice of the hearing date fixed on 23 November 2017, and its advocate on record had ample time to arrange representation. Since an advocate holding brief was present but chose not to participate, the Respondent's predicament was self-inflicted and did not warrant setting aside the orders.
Legal principles established
#- A party who is served with a hearing notice well in advance and whose holding brief advocate attends but declines to participate cannot claim the right to be heard was denied
- Allegations that an advocate was engaged before another court must be evidenced, e.g. by a cause list or extracts from the court file
Court orders
#- 1.The application dated 26 March 2018 be dismissed with costs to the Claimant
- 2.The Court to proceed to deliver the judgment scheduled for 12 April 2018
- Jurisdiction invoked
- Inherent discretion of the Employment and Labour Relations Court over its own Cause; the Court's establishing Statute (section 3) is referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shadrack Otuoma Khamla & 7 others v Aniket Enterprises Limited [2018] KEELRC 1984 (KLR)", Case Analysis (2018). Cause No 872 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1984/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.