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ELRCPartially AllowedCause No 842 of 2015· [2019] KEELRC 323 (KLR)

Paul Mutuku Mulwa v Board of Management Mbooni Boys High School [2019] KEELRC 323 (KLR)

Employment and Labour Relations Court
15 November 2019
1,045 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 reopened a defence missed through a genuine clerical mistake, but made the late party pay Kshs.12,000 for the delay.

What this practically means

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Executive summary

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The Respondent's Notice of Motion dated 3.6.2019 sought to recall the Claimant for cross-examination, a stay of proceedings slated for 6th June 2019, and setting aside or review of orders made on 3rd April 2019 when the matter proceeded ex-parte, under section 16 of the ELRC Act and Article 159(2)(d) of the Constitution. Defence counsel Martin Munene deposed that non-attendance on 3.4.2019 resulted from short notice and his receiving clerk's failure to present the hearing notice in time. The Claimant opposed, contending the application was an afterthought filed two months after the close of hearing, that service on 20.3.2019 for a 3.4.2019 hearing was ample, and that counsel's negligence was not his concern. The court framed one issue: whether the applicant had met the legal threshold for the exercise of discretion. Applying Shah vs Mbogo and Another [1966] EA 166, the court held the discretion to set aside ex-parte orders is wide and aimed at doing justice, and found the non-attendance was a genuine mistake of counsel and his clerk, not deliberate. It took judicial notice that the State Law Office is a large institution where documents can be mixed up. However, the court agreed the two-month delay in filing the application was inordinate and unexplained. The application was allowed: the defence case was reopened with leave to prosecute it, parties were granted liberty to file submissions after the close of the defence case, and the applicant was ordered to pay the claimant throwaway costs of Kshs.12,000 before the defence case is heard.

Key legal issues

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01

Whether the respondent demonstrated grounds to set aside the ex-parte orders and recall the claimant for cross-examination

Holding

Yes. The failure to attend was a genuine mistake of counsel and his clerk, not deliberate, warranting exercise of discretion to reopen the defence case for a fair trial.

Reasoning

The court applied Shah vs Mbogo, holding that the discretion to set aside ex-parte orders exists to avoid injustice from inadvertent or excusable mistake. The affidavit of defence counsel showed the hearing notice was served late and the receiving clerk failed to present it in good time. The court took judicial notice that the State Law Office is a large institution where documents can be mixed up, and found the non-attendance was not deliberate.

p. 2
02

Whether the two-month delay in filing the application was excusable

Holding

No. The delay was inordinate and unexplained, and was compensated by an award of throwaway costs rather than by denying the application.

Reasoning

The court agreed with the claimant that a two-month delay in seeking to set aside the ex-parte orders was inordinate with no sufficient explanation. However, since the interests of justice favoured reopening the defence case, the claimant was compensated for the inconvenience through throwaway costs of Kshs.12,000 payable before the defence case is heard.

p. 2

Legal principles established

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  • The court's discretion to set aside ex-parte orders is wide and unfettered, exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays the course of justice.
  • Where there is a defence on record and the failure to attend was a genuine mistake by counsel, the court may excuse the mistake in favour of a fair trial, while compensating the opposing party for inordinate delay.

Court orders

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  1. 1.The defence case is reopened and the respondent is granted leave to prosecute the same
  2. 2.Parties will be at liberty to file submissions after close of defence case
  3. 3.Applicant to pay the claimant's throw away costs of Kshs.12,000 before the defence case is heard

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (1)

  • Shah vs Mbogo and Another
    [1966] EA 166
Jurisdiction invoked
Section 16 of the ELRC Act and Article 159(2)(d) of the Constitution

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, "Paul Mutuku Mulwa v Board of Management Mbooni Boys High School [2019] KEELRC 323 (KLR)", Case Analysis (2019). Cause No 842 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/323/eng@2019-11-15

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