Francis Ndwigah Nyagah v Transchem Pharmaceuticals Limited [2021] KEELRC 878 (KLR)
The bottom line
#Kenya's Employment Court refused to strike out an employer's defence, ruling that disputed employment claims must be decided at a full hearing, not on paperwork.
What this practically means
#Executive summary
#Key legal issues
#Whether the statement of response should be struck out for want of triable issues
The application was dismissed because the grounds of opposition raised issues requiring canvassing at a full hearing
Applying the settled principles in Blue Shield Insurance and DT Dobie, the court held that striking-out power is discretionary and must be exercised sparingly, without venturing into the merits. The statement of response contested the basis of the employment relationship and the character of the termination, thus disclosing triable issues that must go to trial so the cause can be determined on its merits.
Whether absence of a replying affidavit was fatal to the Respondent's opposition
It was not; the grounds of opposition on record could be relied upon and Rule 17(9) is not mandatory
The court found that since the grounds of opposition were on record they could serve as the Respondent's defence to the motion. Rule 17(9) of the ELRC (Procedure) Rules, 2016 is couched in discretionary terms, so non-compliance was not intended to be fatal to the non-compliant party. The court was not persuaded that the absence of the replying affidavit was fatal.
Balancing access to justice against the right to ventilate disputed facts
The balance tilted in favour of hearing both parties and determining the cause on its merits
In discretionary applications of this nature, the court must strike a balance between the Claimant's interest in accessing justice without undue delay and the Respondent's right to ventilate its case on disputed facts. That balance is deciphered from the documents on record, the grounds relied upon by the parties, submissions and the law. In this case it favoured a full hearing rather than striking out the response.
Legal principles established
#- The power to strike out a pleading which ends in driving a party from the judgment seat should be used sparingly and only where the pleading is clearly untenable
- A triable issue need not be one which will succeed but one which raises a prima facie defence to go to trial; only sham defences qualify to be struck out before full hearing
- Grounds of opposition on record may be relied upon even absent a replying affidavit; Rule 17(9) of the ELRC (Procedure) Rules, 2016 is discretionary, not mandatory
Court orders
#- 1.The application dated 13th July 2021 is dismissed with no orders as to costs
- 2.The matter to be listed before the Deputy Registrar for confirmation of compliance with pre-trial directions
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016; Order 2 Rule 15 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Juliet Wamiri v James R. Njenga & another [2021] KEELRC 14 (KLR)[2021] KEELRC 14 (KLR)20 Dec 2021
Cite this brief
#Cite this brief
Caselaw, "Francis Ndwigah Nyagah v Transchem Pharmaceuticals Limited [2021] KEELRC 878 (KLR)", Case Analysis (2021). Notice of motion dated 13th July 2021 (ELRC Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/878/eng@2021-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.