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ELRCAllowedNot stated in judgment· [2021] KEELRC 1240 (KLR)

Rose Matunda v Hi-Tech Opticians [2021] KEELRC 1240 (KLR)

Employment and Labour Relations Court
21 July 2021
HWHellen Wasilwa
1,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed a company to file its defence late, ruling that resolving a case on its merits matters more than strict deadlines.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Hellen Wasilwa, J, delivered virtually on 21st July 2021, determined an application by the Respondent in the main claim seeking leave to file its statement of response, list of documents, list of witnesses and witness statements out of time, and that those documents be deemed duly filed and served. The Respondent, through the affidavit of its director Jayaram Ankala, explained that it entered appearance in December 2017 but did not file a response because the director, who was abroad in India and Uganda, had not given full instructions and only returned to Kenya around July 2018. The Claimant, Rose Nyaboke Matunda, opposed the application as an abuse of process, arguing service on 11th December 2017, inordinate and unexplained delay, lack of evidence of the director's travel, and that ignorance of the law is no defence. On written submissions, the Respondent's counsel relied on Article 159(2)(d) of the Constitution and authorities including Robert Nyagwansa Miruka v Presbyterian University of East Africa and Vivian Muia v Mzoori Limited, urging that no prejudice would be suffered. The Claimant relied on Rules 13 and 15 of the Court's Rules. The court found the Claimant himself had delayed prosecuting the claim, that the Respondent's readiness to proceed caused no prejudice, and allowed the application as prayed, with costs in the cause.

Key legal issues

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01

Whether late filing of a response should be excused on leave being sought under section 3A and 95 of the Civil Procedure Act

Holding

The application was allowed; the court found the delay excusable and no prejudice to the Claimant

Reasoning

The court considered the parties' submissions and observed that the Claimant himself had contributed to the delay by failing to prosecute the matter after filing in 2017. It found the Respondent's readiness to proceed would not prejudice the Claimant and would enable a just and fair determination on the merits, consistent with Article 159(2)(d) on procedural technicalities as urged in the applicant's authorities.

p. 3
02

Effect of delay by both parties on the exercise of discretion

Holding

The court noted the Claimant's own inactivity in prosecuting the suit, tempering the complaint of inordinate delay

Reasoning

The court observed that although the Respondent came to court late, the Claimant had also gone to sleep after filing his claim in 2017, filing the present application only years later. This mutual delay weighed in favour of allowing the response to be deemed filed so the suit could be heard substantively rather than proceed to formal proof.

p. 2

Legal principles established

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  • Justice should be administered without undue regard to procedural technicalities and a party ready to proceed should not be locked out where no prejudice is shown

Court orders

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  1. 1.Leave granted to the Respondent to file its statement of response, list of documents, list of witnesses and accompanying witness statements out of time
  2. 2.The Respondent's statement of response dated 10th August 2018, list of documents, list of witnesses and accompanying witness statements deemed as duly filed and served
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 3A and 95
  • Employment and Labour Relations Court Actsection 3
  • Employment and Labour Relations Court (Procedure) RulesRules 13 and 15
  • Constitution of Kenya, 2010Articles 46, 50, 159(2)(d)

Cases cited (2)

  • Robert Nyagwansa Miruka –v- Presbyterian University of East Africa
    [2019] eKLR
  • Vivian Muia –v- Mzoori Limited
    [2017] eKLR
Jurisdiction invoked
Section 3A and 95 of the Civil Procedure Act; Employment and Labour Relations Court Act and the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Rose Matunda v Hi-Tech Opticians [2021] KEELRC 1240 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1240/eng@2021-07-21

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