Douglas Maina Kamau v Kibirigwi Farmers Co-operative Society Limited [2019] KEELRC 1611 (KLR)
The bottom line
#A Kenyan employment court refused to reopen a case after counsel gave a false excuse for missing hearings, showing dishonesty loses judicial discretion.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's non-attendance justified reopening the Claimant's case
The application was dismissed because the counsel's absence was not excusable but a deliberate effort to obstruct or delay the hearing
The court examined the principles governing setting aside and reopening. It found counsel claimed to have been attending Civil Appeal No. 132 of 2017 at Nyeri, but the Court of Appeal Registry confirmed the appeal was taken out of the hearing list on 11th March 2019 and did not proceed. Counsel was therefore less than candid. The Respondent also failed to avail any representative or witness, showing no intention to participate. Discretion was properly refused.
Scope of the court's discretion in setting aside or reopening
The discretion is unlimited save that it must be exercised justly, to do justice between the parties, and not to reward deliberate obstruction
The court articulated the governing principles: discretion is free of limits or restrictions except that terms must be just; its object is to avoid injustice from accident, inadvertence or excusable mistake; but it is not available to a party who deliberately evades or obstructs or delays the course of justice. On the facts, counsel's conduct fell in the latter category.
Legal principles established
#- Discretion to set aside or reopen is free and unfettered save that it must be exercised justly, its object being to do justice to the parties
- The discretion is designed to relieve against accident, inadvertence or excusable mistake, but not to assist a party who deliberately seeks to obstruct or delay the course of justice
Court orders
#- 1.The Respondent's application to reopen the Claimant's case is dismissed
- 2.The matter to proceed to final submissions pending judgment
- 3.Further directions on closing stages (submissions and judgment date) to be given upon delivery of the ruling
- 4.Costs of the application to the Claimant
- Jurisdiction invoked
- Inherent discretion of the court to set aside/reopen a case; no specific constitutional or statutory provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Maina Kamau v Kibirigwi Farmers Co-operative Society Limited [2019] KEELRC 1611 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1611/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.