Christopher Garo Nyawade v H. Young & Company (E.A.) Limited [2020] KEELRC 28 (KLR)
The bottom line
#Kenya's Employment Court set aside an ex parte judgment because the employer missed the hearing through her lawyer's clerical mistake, not deliberate neglect, allowing the defence to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for setting aside a regular judgment
Yes. Although there was negligence in counsel's office, the applicant herself was not negligent; her defence raises triable issues, the application was filed promptly, and her prejudice outweighs the claimant's, which costs can remedy.
The court synthesised Shah v Mbogo, Patel v East Africa Cargo Handling and related authorities into five conditions: non-deliberate non-attendance, promptness, arguable defence, balance of prejudice and interests of justice. It found the secretary's failure to diarize the hearing notice, though constituting office negligence, was not the litigant's negligence; no affidavit from the secretary or diary was produced, but the court was still satisfied. The defence denying unfair termination and asserting valid reason and fair procedure raised prima facie triable issues.
Whether the judgment of 29.4.2020 should be set aside and the hearing re-opened
Yes. The judgment was set aside, the hearing re-opened, and leave granted to cross-examine the Claimant, call witnesses and file substituted witness statements, on terms of throw away costs.
The court found the application was made without unreasonable delay (letter of 20.7.2020 notifying judgment, application filed 22.7.2020), and that denying the respondent a chance to prosecute her defence in a 5-year suit would be more prejudicial and irreparable than the claimant's prejudice, which costs would adequately remedy.
Legal principles established
#- To set aside a regular judgment the applicant must show non-attendance due to inadvertence or honest mistake rather than deliberate neglect, absence of unreasonable delay, an arguable defence raising triable issues, greater prejudice, and that the interests of justice demand the setting aside.
- A counsel's or counsel's office's mistake may warrant setting aside a regular judgment where the litigant has an arguable defence, so that the party gets his day in court.
- Prejudice to a claimant from setting aside a regular judgment can be adequately remedied by costs.
Court orders
#- 1.The judgment delivered on 29.4.2020 is set aside and the hearing is re-opened
- 2.Leave granted to the Applicant to cross examine the Claimant and to call her witnesses
- 3.Leave granted to the Applicant to file substituted witness statements
- 4.The Applicant is condemned to pay Kshs. 15,000 as throw away costs to the Claimant
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution and sections 3 and 16 of the Employment and Labour Relations Court Act (as invoked by the Applicant); inherent discretion to set aside a regular judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Garo Nyawade v H. Young & Company (E.A.) Limited [2020] KEELRC 28 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/28/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.