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ELRCOtherCause of 21 March 2014 (Issue in Dispute: Unfair and Unlawful constructive dismissal)· [2019] KEELRC 127 (KLR)

Ahmed Sheikh Mohamed v Garissa Water & Sewerage Company [2019] KEELRC 127 (KLR)

Employment and Labour Relations Court
19 December 2019
RSRadido Stephen
541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court threw out an ex parte dismissal case because the hearing notice went to the wrong law firm — service on the correct advocate on record is essential.

What this practically means

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Executive summary

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The Claimant, Ahmed Sheikh Mohamed, sued Garissa Water & Sewerage Co. on 21 March 2014 for unfair and unlawful constructive dismissal, obtaining the same day an interim order restraining his replacement. The Respondent was represented successively by C P Onono & Co Advocates (from 4 April 2014) and E Wafula & Associates (from 26 May 2014). The Claimant changed advocates several times,最后 instructing Ali & Co. Advocates. When the Cause came up for hearing on 27 November 2019, the Claimant was ready to proceed, and the record contained an affidavit attesting to service of a hearing notice on the firm of Wafula, Washika & Associates Advocates; the Court allowed the Claimant to prosecute his case ex parte and reserved judgment to 19 December 2019, with submissions filed on 6 December 2019. However, on reviewing the record the Court decided to render a Ruling instead of a Judgment. It found nothing on record showing that Wafula, Washika & Associates had filed a Notice of Change of Advocate to take over the Respondent's case from E Wafula & Associates, and the relationship between the two firms was unclear. It concluded that the Respondent and/or its advocate on record was never served with a hearing notice. Acting suo moto, the Court set aside the proceedings of 27 November 2019 and directed that the Cause be heard afresh after the correct advocate on record is served with a hearing notice. It made no order as to costs. The merits of the constructive dismissal claim remain undecided.

Key legal issues

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01

Service of hearing notice on the advocate on record

Holding

Since the firm of Wafula, Washika & Associates had never filed a Notice of Change of Advocate to replace E Wafula & Associates, service of the hearing notice on Wafula, Washika & Associates did not constitute service on the Respondent's advocate on record.

Reasoning

The Court traced the representation history: C P Onono & Co Advocates came on record on 4 April 2014, replaced by E Wafula & Associates on 26 May 2014. No Notice of Change of Advocate was filed by Wafula, Washika & Associates, and the relationship between the two firms was unclear. Service of the hearing notice was therefore effected on the wrong firm, rendering the ex parte hearing of 27 November 2019 irregular.

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Legal principles established

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  • A party must be served with a hearing notice on its advocate on record before ex parte proceedings can proceed; where service was not effected on the correct advocate on record, the court may suo moto set aside the proceedings.

Court orders

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  1. 1.The Court suo moto sets aside the proceedings of 27 November 2019
  2. 2.The Cause to be heard afresh after the correct advocate on record is served with a hearing notice
  3. 3.No order as to costs

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, "Ahmed Sheikh Mohamed v Garissa Water & Sewerage Company [2019] KEELRC 127 (KLR)", Case Analysis (2019). Cause of 21 March 2014 (Issue in Dispute: Unfair and Unlawful constructive dismissal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/127/eng@2019-12-19

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