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ELRCDismissedNot stated in the judgment· [2020] KEELRC 45 (KLR)

Abraham Karumi Gichuki v Mastermind Tobacco (K) Limited [2020] KEELRC 45 (KLR)

Employment and Labour Relations Court
24 September 2020
NMNzioki wa Makau
1,340 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to reopen a case because the advocate who missed a hearing over Covid-19 quarantine provided no proof and never followed up.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Court by notice of motion dated 17th September 2020 seeking to arrest judgment in the suit scheduled for 24th September 2020, to recall the Claimant's witnesses for cross-examination, and to be allowed to call its own witnesses. The application was anchored on the assertion that the Respondent's advocate, Mr Mathews Okoth, fell ill with Covid-19 on 28th July 2020, tested positive, and was placed under mandatory home-based quarantine until late August 2020, thereby missing the hearing fixed for 30th July 2020. Counsel relied on the Court of Appeal decision in Richard Ncharpi Leiyagu v IEBC on the discretion to set aside orders, and M Merama Nyangombe v Chacha Mwita on defence on the merits and prejudice. The Claimant opposed, contending the application was premature as no judgment had been delivered, and cited Mary Igoki Muruaruchiu v Johnson Rwigi. The Court held that the application was tenuous: no medical records from Mater Misericordiae Hospital were attached to prove the illness; the advocate was quarantined rather than hospitalised and could have communicated; he practised in a firm yet sought no colleague's assistance; he made no effort in August to follow up or contact the Claimant's advocates; and the application was filed belatedly. The Court found no ground for re-opening the case and no judgment capable of being arrested. The motion was dismissed with no order as to costs, with judgment to be set down for delivery shortly thereafter.

Key legal issues

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01

Whether the advocate's Covid-19 illness and quarantine excused non-attendance at the hearing

Holding

Non-attendance was not excused; no medical evidence was attached and no proactive steps were taken during or after quarantine

Reasoning

The advocate claimed to have tested positive for Covid-19 on 28th July 2020 and to have been quarantined, but attached no treatment records from Mater Misericordiae Hospital to prove the illness. He was in quarantine, not hospitalised, so could have made or received calls. He practised in a firm yet sought no colleague's help, made no effort in August to ascertain what transpired on 30th July, and did not contact the Claimant's advocates. The application itself was filed late, on 10th September 2020, indicating deliberateness rather than inadvertence.

p. 2
02

Whether there was a judgment capable of being arrested

Holding

No judgment had been delivered, so the prayer to arrest judgment was premature and misconceived

Reasoning

The motion sought to arrest a judgment slated for 24th September 2020. As at the date of the ruling, judgment had not been delivered; only a judgment notice had been issued. Following the authority cited by the Claimant, there was no judgment in existence to be arrested. The Court noted it would simply set a fresh date for delivery of judgment after the ruling, the original date having been interrupted by the motion.

p. 2

Legal principles established

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  • In setting aside its orders, a court must consider whether the mistake or error giving rise to the prayers for relief is inadvertent or excusable
  • A diligent advocate who is unable to attend court should proactively seek the indulgence of colleagues or opposing counsel to communicate the predicament

Court orders

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  1. 1.The Respondent's notice of motion dated 17th September 2020 is dismissed
  2. 2.No order as to costs
  3. 3.A date for delivery of judgment will be set shortly after the Ruling

Authorities

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Legislation

  • Civil Procedure ActNot specified
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 Others
    [2013] eKLR
  • M Merama Nyangombe v Chacha Mwita
    Civil Appeal No 79 of 1983 Kisumu (unreported)
  • Mary Igoki Muruaruchiu v Johnson Rwigi
    [2019] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (specific provision not stated 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, "Abraham Karumi Gichuki v Mastermind Tobacco (K) Limited [2020] KEELRC 45 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/45/eng@2020-09-24

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