Cresenco Cleofas v Lantech Africa Limited [2021] KEELRC 282 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte default judgment of 28th June, 2021 should be reviewed, varied or set aside
The application for review failed; there was no new matter, no mistake on the record, no need for clarification and no sufficient cause, and service of hearing notices on all occasions was proper
Rule 33(1) of the ELRC (Procedure) Rules, 2016 sets out the grounds for review. The court found none established. Service of the hearing notices for 25th February 2020, 9th February 2021 and 20th May 2021 was proved by returns of service by a duly licensed process server, whose 2020 licence was valid. The CEO was privy to the proceedings but opted not to attend, so the default could not be attributed to counsel alone.
Whether virtual taking of evidence from a claimant abroad without express permission vitiated the judgment
The court was satisfied to hear the claimant via video conferencing pursuant to the Chief Justice's Practice Directions of 20th March, 2020 issued to address the COVID-19 pandemic
The claimant was in the Philippines and could not attend physically. Virtual proceedings had become the norm during the COVID-19 pandemic and were augmented by the Practice Directions on Electronic Case Management. The court, having found proper service, properly proceeded to hear the claimant on the merits under those directions.
Whether an order should issue that the applicant attend court or tender his passport for examination
No such order was made; the orders sought were couched against the applicant (the respondent) and, given the validity of the judgment, such an order would serve no legitimate purpose
The application was filed by the respondent as the applicant. If the intention was to compel the claimant to attend or tender a passport, that intention was not apparent from the way the orders were couched. With the judgment found valid, summoning the applicant to tender a passport would serve no legitimate purpose.
Legal principles established
#- An applicant seeking review, variation or setting aside of a judgment must demonstrate discovery of new matter, a mistake on the record, need for clarification or other sufficient cause, and bears the burden of showing good cause
- A litigant who is aware of a hearing date but finds it unsuitable must attend court and urge its case; to sit back and wait for judgment and then seek review is an abuse of court process
- A litigant is bound by the acts and omissions of his advocate but should not bear the consequences of counsel's default unless privy to it or it results from failure to give due instructions
Court orders
#- 1.The application dated 7th September, 2021 is dismissed in its entirety
- 2.Costs to the claimant
- Jurisdiction invoked
- Article 159 of the Constitution; sections 16 and 20 of the Employment and Labour Relations Court Act; Judicature Act; Order 12 Rules 2 and 7 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cresenco Cleofas v Lantech Africa Limited [2021] KEELRC 282 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/282/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.