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ELRCDismissedNot stated in the excerpt (Cause number not reproduced)· [2019] KEELRC 1728 (KLR)

Rahab Njeri Kaguthi v Meas Agricultural Centre Limited [2019] KEELRC 1728 (KLR)

Employment and Labour Relations Court
25 April 2019
MMM. Mbaru
1,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen an employment case won by default because the losing employer offered no evidence for missing the hearing.

What this practically means

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Executive summary

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The respondent, Meas Agricultural Centre Limited, moved by Notice of Motion dated 25th February, 2019 seeking to set aside the judgment delivered on 14th February, 2019 and all related orders, and to have the matter heard de novo. The claimant's suit had proceeded ex parte on 30th January, 2019 after service effected on 23rd January, 2019, the respondent and its advocates being absent; judgment was delivered on 14th February, 2019. The respondent attributed its non-attendance to the indisposition of its advocate, Jane Wambui Ndung'u, and to an unnamed advocate sent to hold brief who arrived late to find the hearing concluded, urging that a client should not be condemned for the mistake of counsel. The claimant, through her advocate Lucy Nekesa Cheloti, opposed the application as an abuse of process, noting the absence of any affidavit supporting the claim that an advocate had been sent to hold brief, and the prejudice of a de novo hearing. The court held that the allegations of indisposition were wholly unsupported by evidence, that the advocate said to hold brief was unidentified with no affidavit from him, and that nothing was done between the ex parte hearing and judgment to remedy the lapse. Distinguishing Geraldine Musabi Oriedo and applying Zubheir Abdalla versus Yussuf Juma, the court found no good cause shown. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether bare assertions of counsel's indisposition and an advocate holding brief suffice to set aside an ex parte judgment

Holding

They do not; such allegations require evidentiary support, and none was offered

Reasoning

The respondent's advocate alleged she was indisposed and that another advocate was sent to hold brief but arrived late. The court found no evidence of the indisposition, and the advocate said to hold brief was unnamed with no affidavit from him. The respondent also took no steps between the ex parte hearing and the delivery of judgment. Reliance on Geraldine Musabi Oriedo was distinguished because that case involved a clerk's failure to diarise despite faithful attendance by the advocate.

p. 1
02

Whether the claimant's right to a hearing and to conclusion of her case outweighs setting aside the judgment

Holding

The claimant, having done everything required and attended on several occasions, also has a right to a hearing and to receive justice; setting aside would prejudice her

Reasoning

The court emphasised that the claimant prosecuted her suit diligently, service had been effected, and due process was applied in hearing and concluding the matter. A de novo hearing would cause immense prejudice. The respondent, aware of the hearing date, failed to attend and offered no justification after judgment.

p. 2

Legal principles established

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  • A party alleging indisposition of counsel or that an advocate was sent to hold brief must support those allegations with evidence; mere allegations do not constitute good cause to set aside a procedurally delivered judgment.

Court orders

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  1. 1.The application dated 25th February, 2019 is dismissed
  2. 2.Costs to the claimant
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (specific provision not cited 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, "Rahab Njeri Kaguthi v Meas Agricultural Centre Limited [2019] KEELRC 1728 (KLR)", Case Analysis (2019). Not stated in the excerpt (Cause number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1728/eng@2019-04-25

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