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ELRCDismissedNot stated in the judgment· [2018] KEELRC 2000 (KLR)

Godwin Sunday Odhiambo v Francis Mulinge Munyao t/a Club Whispering [2018] KEELRC 2000 (KLR)

Employment and Labour Relations Court
17 May 2018
LNLinnet Ndolo
768 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 re-open a case where the employer repeatedly ignored directions and relied on a false excuse.

What this practically means

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Executive summary

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The Respondent, by Notice of Motion dated 4th April 2018, sought setting aside of the proceedings of 7th March 2018 and all consequential orders, and re-opening of the suit for further hearing and cross-examination. He argued that his Counsel had sought an adjournment because he was attending the burial of a close relative, the late Alphonce Kiilu Soo, that the adjournment was wrongly disallowed, and that the Claimant would suffer no prejudice if the application were allowed. The Claimant opposed through a replying affidavit sworn by his Advocate, Philip Muganda Mabele, pointing out that the Respondent was the author of his own misfortune: ex parte proceedings had already been set aside by consent on 27th September 2017, the Respondent was given 21 days to file a response, filed nothing by the mention of 23rd November 2017, and gave no explanation. The Court, per Linnet Ndolo J, reviewed the record and found that on 7th March 2018 the Respondent neither filed supporting documents nor attended, and his Advocate said only that he had travelled and she could not reach him - never that he was attending a burial. Applying Mbogo & another v Shah, the Court held that the discretion to set aside proceedings exists to avert injustice from inadvertent or excusable mistake and must not be used to delay or obstruct justice. The chronology disclosed a clear abuse of court process and the application was premised on falsehoods. The application was dismissed with costs to the Claimant, and the Respondent was directed to file final submissions within fourteen days.

Key legal issues

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01

Whether the Court should exercise its discretion to set aside the ex parte proceedings of 7th March 2018

Holding

The application was dismissed; the Respondent was the author of his own misfortune, having severally failed to comply with directions and having advanced a false ground (a burial) for the adjournment sought.

Reasoning

The record showed the matter had already been set aside once by consent in September 2017 and the Respondent given 21 days to file a response, which he failed to do without explanation. On the hearing date of 7th March 2018 he was absent and his Advocate said only that he had travelled and she could not reach him - never that he was attending a burial. Given this chronology, granting a second setting aside would amount to abuse of process and no basis existed to exercise discretion in his favour.

p. 2

Legal principles established

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  • The Court's discretion to set aside proceedings is meant to avert injustice or hardship from inadvertent or excusable mistake, and must not be used to delay or obstruct the cause of justice.

Court orders

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  1. 1.The Respondent's application dated 4th April 2018 is dismissed with costs to the Claimant
  2. 2.The Respondent is directed to file his final submissions on the main claim within fourteen (14) days from the date of the ruling

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 proceedings (application brought by Notice of Motion under a Certificate of Urgency); no specific constitutional or statutory provision cited

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, "Godwin Sunday Odhiambo v Francis Mulinge Munyao t/a Club Whispering [2018] KEELRC 2000 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2000/eng@2018-05-17

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