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Case Brief · caselaw.co.ke
ELRCOtherCause No 160 of 2018· [2019] KEELRC 579 (KLR)

Edward Mwaivu Mlacha v Bob Morgan Services Limited [2019] KEELRC 579 (KLR)

Employment and Labour Relations Court
24 October 2019
JRJames Rika
742 words in judgment
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The bottom line

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A Kenyan employer lost its chance to defend an ex parte judgment because it blamed its lawyers without documents proving it had actually instructed them.

What this practically means

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Executive summary

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This Employment and Labour Relations Court decision at Mombasa, delivered by James Rika on 24th October 2019, determines the Respondent's Notice of Motion dated 16th July 2019. The underlying claim had proceeded ex parte after the Respondent failed to file a Statement of Response; on formal proof on 4th March 2019, the Court declined an adjournment sought by the Respondent's Advocates, who had on that same day filed an application for leave to cease acting. Judgment was delivered on 20th June 2019 awarding terminal benefits and compensation for unfair termination totalling Kshs. 388,748, plus Certificate of Service, costs and interest. The Respondent, through new Advocates, sought stay of execution, vacation of the ex parte proceedings and judgment, and leave to file its Statement of Response, blaming its previous Advocates' laxity. The Court declined to disturb the judgment. It found unrefuted the affidavit of Mr. Timothy Njeru confirming that the Respondent had stopped giving instructions, failed to reply to letters and never supplied details of its intended Response. The Branch Manager's affidavit exhibited no instructions note or letter. Applying the Court of Appeal decision in Joseph Mutio Kinyambo v. Philomena Karai Mulu, the Court held that a litigant blaming counsel's mistake must demonstrate with clear documentary evidence that it was not the cause of the mistake. Njeru & Company were discharged and Sindinyu Njau & Company granted leave to act, but the substantive prayers were declined with costs to the Claimant.

Key legal issues

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01

Whether the ex parte judgment should be vacated and the Respondent allowed to file its Statement of Response out of time

Holding

The application was declined because the default was not satisfactorily explained and there was no refutation of the previous Advocates' evidence that the Respondent failed to give instructions

Reasoning

The Court noted that the Respondent's previous Advocates, in their application to cease acting, swore that the Respondent stopped giving instructions, did not reply to letters and did not supply details of its intended Response. The Respondent's Branch Manager blamed the Advocates' laxity but produced no instructions note or letter. The Claimant's position that the default was unexplained was therefore well-founded, and the Court saw no ground to interfere with the ex parte judgment.

p. 2
02

Change of advocates on record

Holding

Njeru & Company was discharged and Sindinyu Njau & Company granted leave to act for the Respondent

Reasoning

Given the prior application on record by Njeru & Company seeking leave to cease acting, the Court saw no ground to deny prayer 2 of the Notice of Motion and allowed the change of representation.

p. 1

Legal principles established

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  • A litigant seeking exercise of the court's discretion while blaming counsel's mistake must meet a high standard of demonstrating, with clear documentary evidence, that he was not the cause of the mistake

Court orders

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  1. 1.The Law Firm of Njeru & Company is discharged from the proceedings
  2. 2.The Law Firm of Sindinyu Njau & Company is granted leave to act for the Respondent
  3. 3.Other orders sought in the application filed by the Respondent on 16th July 2019 are declined
  4. 4.Costs to the Claimant

Authorities

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Cases cited (1)

  • Joseph Mutio Kinyambo V. Philomena Karai Mulu
    Nairobi Court of Appeal Civil Application No. 243 of 2016
Jurisdiction invoked
Not stated in the judgment

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, "Edward Mwaivu Mlacha v Bob Morgan Services Limited [2019] KEELRC 579 (KLR)", Case Analysis (2019). Cause No 160 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/579/eng@2019-10-24

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