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ELRCDismissed· [2020] KEELRC 1940 (KLR)

Mutula v Kenya Ports Authority (Cause 2 of 2020) [2020] KEELRC 1940 (KLR)

Employment and Labour Relations Court
16 July 2020
LNLINNET NDOLO
1,104 words in judgment
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The bottom line

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Kenya's Employment Court refused to kick a respondent out of a case for filing one day late, choosing fairness over strict deadlines.

What this practically means

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Executive summary

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The Claimant filed a Notice of Motion dated 21st February 2020 seeking orders to bar the Respondent from filing a Memorandum of Appearance and/or Response out of time, to declare the Memorandum of Appearance filed on 19th February 2020 irregular and strike it out, and to enter judgment against the Respondent with the suit set down for formal proof. The Claimant relied on Rule 13(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, which requires a response within 21 days of service. Service was effected on 29th January 2020 and the period lapsed on 18th February 2020; the Memorandum of Appearance was filed on 19th February 2020 without leave. The Respondent opposed through Grounds of Opposition and a replying affidavit, conceding the late filing but attributing the delay to the need to collect required information, and invoking Article 159(2)(d) of the Constitution and Section 3 of the Employment and Labour Relations Court Act, which command the Court to render substantive justice without undue regard to procedural technicalities. Judge Linnet Ndolo held that although procedural rules are not idle instructions, denying a party a hearing for a delay of a few days would be a great injustice, applying the authorities that the right to be heard is a valued right and that denial of a hearing should be a last resort. The application was dismissed, the Respondent's Response filed on 28th February 2020 was admitted as duly filed, and costs were made costs in the cause.

Key legal issues

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01

Whether a Memorandum of Appearance filed one day outside the 21-day period under Rule 13(1) should be struck out

Holding

No. The delay was marginal, explained, and locking the Respondent out would occasion an injustice; Article 159(2)(d) and Section 3 of the ELRC Act command substantive justice without undue regard to procedural technicalities.

Reasoning

The court accepted that the 21-day period under Rule 13(1) lapsed on 18th February 2020 and that the appearance was filed on 19th February 2020 without leave. However, applying the constitutional command to administer substantive justice and the authority that the right to be heard is a valued right, it held that denying a hearing for a delay of a few days would be a great injustice. The delay was neither inordinate nor unexplained.

p. 3

Legal principles established

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  • To deny a party the opportunity to be heard should be an action of last resort
  • A short, explained delay should not lock a party out of proceedings

Court orders

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  1. 1.The Claimant's application dated 21st February 2020 is declined
  2. 2.The Response filed by the Respondent on 28th February 2020 is admitted as duly filed
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 13(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 13(5)
  • Employment and Labour Relations Court ActSection 3
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (2)

  • Sabei District Administration v Gasyali & others
    (1968) EA 300
  • Mbaki & others v Macharia & another
    (2005) EA 2006
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 3; Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 13

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutula v Kenya Ports Authority (Cause 2 of 2020) [2020] KEELRC 1940 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1940/eng@2020-07-16

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