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ELRCDismissed· [2019] KEELRC 1611 (KLR)

Douglas Maina Kamau v Kibirigwi Farmers Co-operative Society Limited [2019] KEELRC 1611 (KLR)

Employment and Labour Relations Court
24 May 2019
637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri, delivered by Nzioki wa Makau J on 24th May 2019, determined the Respondent/Applicant's notice of motion dated 18th March 2019 seeking to reopen the Claimant's case. The application was grounded on the inadvertence of the Respondent's counsel, K. M. Maina, who failed to attend court on 11th March 2019 when the case was scheduled for hearing, and again on 12th March 2019 when the matter proceeded and the Respondent's case was closed. Counsel attributed his absence to a hearing of Civil Appeal No. 132 of 2017 at Nyeri. The Claimant opposed, asserting the Respondent was undeserving of the court's discretion and that judgment should proceed. On enquiry by the court, the Court of Appeal Registry at Nyeri confirmed that the appeal had been taken out of the hearing list on 11th March 2019 and did not proceed, demonstrating that counsel was less than candid. The court restated the principles governing setting aside: the discretion is unlimited save that it must be exercised justly to do justice to the parties; it exists to relieve against accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays the course of justice. The Respondent had also failed to avail any representative or witness. The application was dismissed with costs to the Claimant, and the matter was directed to proceed to final submissions pending judgment, with further directions on submissions and a judgment date to be given.

Key legal issues

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01

Whether counsel's non-attendance justified reopening the Claimant's case

Holding

The application was dismissed because the counsel's absence was not excusable but a deliberate effort to obstruct or delay the hearing

Reasoning

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.

p. 2
02

Scope of the court's discretion in setting aside or reopening

Holding

The discretion is unlimited save that it must be exercised justly, to do justice between the parties, and not to reward deliberate obstruction

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Respondent's application to reopen the Claimant's case is dismissed
  2. 2.The matter to proceed to final submissions pending judgment
  3. 3.Further directions on closing stages (submissions and judgment date) to be given upon delivery of the ruling
  4. 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

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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, "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.