Francis Kimani Kinuthia v Flamingo Hill Camp Limited [2019] KEELRC 1049 (KLR)
The bottom line
#A Kenyan employer lost its bid to overturn a judgment because its own advocates skipped the hearing, so the successful employee can now collect.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment and proceedings should be set aside for non-attendance by the respondent
The application to set aside was dismissed; the respondent was properly served with hearing and judgment notices and its non-attendance resulted from its advocates' neglect, not from any procedural defect
The court traced the chronology: the respondent was served on 29th May 2018 and on 20th August 2018 but failed to attend; hearing proceeded ex parte and a judgment notice was served on 9th January 2019. Mr Obutu's own affidavit showed he knew of the scheduled hearing and had departed the firm, leaving no proper handover to the sole proprietor. His diligence after judgment showed awareness that should have been applied before the hearing. The court found the application an abuse of process.
Whether stay of execution should issue
No stay was granted because the suit had concluded and there were no proceedings left to stay; the claimant was entitled to execute
The court reasoned that due process had been followed by the claimant, the case had been heard and concluded and judgment delivered. With nothing pending, stay of execution had no substratum. The respondent's remedy for its advocates' negligence lay in a separate procedure, not in this application, which the court characterised as an attempt to frustrate the course of justice.
Whether the change of advocates was properly effected
Leave was granted by consent on 7th February, 2019, but the court deprecated the failure to serve the claimant with the consent upon change of representation
The court found that the claimant had not been served with the consent for change of advocates, prompting objections. Though the consent was ultimately noted, the court held that such procedural steps must be open and transparent so that parties act from a point of information, and that the failure to serve was unbecoming conduct by an officer of the court, citing Paul Ekwom Nabuin v Turkana County Government.
Legal principles established
#- Procedural matters such as change of advocates must be handled openly and the other party served with notice of the change
- A litigant who was duly served but fails to attend through its advocate's negligence should not have ex parte proceedings set aside; recourse lies against the negligent advocate
Court orders
#- 1.Noting by consent the change of advocates from S.M. Omae & Company Advocates to Kipruto Gitau & Company Advocates, who were allowed on record on 7th February, 2019
- 2.The application dated 6th February, 2019 is found without merit, is an abuse of court process and is dismissed with costs to the claimant
- Jurisdiction invoked
- Inherent powers of the Employment and Labour Relations Court over its cause (application under Notice of Motion dated 6th February, 2019 for change of advocates, stay of execution and setting aside of ex parte judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kimani Kinuthia v Flamingo Hill Camp Limited [2019] KEELRC 1049 (KLR)", Case Analysis (2019). Not stated in judgment (Cause filed by claimant; application dated 6th February, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1049/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.