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ELRCAllowedNot stated in the judgment· [2021] KEELRC 1276 (KLR)

Emily Wanjiru Kinyua v Githunguri Dairy Farmers Cooperative Society [2021] KEELRC 1276 (KLR)

Employment and Labour Relations Court
9 July 2021
MOMAUREEN ONYANGO
2,872 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled COVID-19 delays in filing court documents should not cost a party its day in court.

What this practically means

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Executive summary

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This was a ruling of the Employment and Labour Relations Court at Nairobi on the Respondent's application dated 26th February 2021 seeking to arrest judgment scheduled for 5th March 2021, to set aside the exparte proceedings and to deem its Memorandum of Appearance and Reply to Statement of Claim duly filed. The claim had been served on 3rd February 2020; the Respondent filed appearance on 26th February 2020 and its Reply on 24th June 2020, out of time and without leave, attributing the delay to the COVID-19 pandemic and asserting it was unaware the matter was active until it appeared on the cause list for judgment. The Claimant opposed, contending the delay was inordinate, that the formal proof proceedings under Rule 15(3) required no notice to a defaulting party, and that procedural rules must be strictly followed. The Applicant relied on Sebei District Administration v Gasyali, Shah v Mbogo and Richard Murigi Wamai to argue that denial of a hearing is a last resort and prejudice is compensable by costs. Judge Maureen Onyango found the delay in filing appearance not inordinate and the delay in filing the defence sufficiently explained by the COVID-19 disruption, of which the court took judicial notice. Guided by Article 159(2)(d), the court held that locking out the Respondent would occasion an injustice since the Claimant could be compensated by costs. The application was allowed with throw away costs and costs of the application assessed at Kshs.20,000/= payable within 30 days.

Key legal issues

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01

Whether the Respondent's delay in filing appearance and defence was inordinate and excusable

Holding

The delay in filing appearance was not inordinate and the delay in filing the defence was sufficiently explained by the COVID-19 pandemic disruption, of which the court took judicial notice.

Reasoning

The Respondent was served on 3rd February 2020 and filed its Memorandum of Appearance on 26th February 2020, three or four days after the prescribed 21 days expired, which the court found not inordinate. The Reply to the Statement of Claim was filed on 24th June 2020, but the court, taking judicial notice of the disruption of court business and filing following the outbreak of COVID-19 and Government containment measures, accepted that the delay was sufficiently explained.

p. 4
02

Whether the Respondent should be denied a hearing for failure to comply with the ELRC Procedure Rules

Holding

To lock out the Respondent would occasion an injustice; the right to be heard ranks high and denial of a hearing is a last resort; the Claimant can be compensated by costs.

Reasoning

Relying on Sebei District Administration v Gasyali and Mbaki & Others v Macharia, the court held that the right to be heard is a valued right and shutting a party out should be the last resort. Guided by Article 159(2)(d), the court found the application merited since any inconvenience to the Claimant could be compensated with throw away costs, and the Respondent's Reply raised triable issues warranting a hearing on the merit.

p. 4

Legal principles established

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  • Denial of a party the opportunity to be heard should be a court's action of last resort; delay compensable by costs should not lock a party out of a hearing.
  • Courts must render substantive justice without undue regard to procedural technicalities under Article 159(2)(d).

Court orders

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  1. 1.The application dated 26th February 2021 is allowed
  2. 2.The exparte proceedings set aside and the matter to proceed to hearing on merit (implied by allowing the application)
  3. 3.The Respondent shall pay the Claimant throw away costs together with the costs of the application assessed at Kshs.20,000/= to be paid within 30 days from the date of the ruling

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 13(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 15(3)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (9)

  • Richard Murigi Wamai v Attorney General & Another
    [2018] eKLR
  • Sebei District Administration v Gasyali & Others
    (1968) EA
  • Shah v Mbogo
    (1967) EA 166
  • Simba Coach Limited v Kiriiyu Merchants Auctioneers
    Kakamega Civil Appeal No. 137 of 2018
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    E&L No. 200 of 2012 (2014) eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Charles Nzeki Mwanga v Senaca East Africa Ltd
    [2017] eKLR
  • Jaldesa Tuke Dabelo v IEBC & Another
    [2015] eKLR
  • Mbaki & Others v Macharia & another
    (2005) EA 2006
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Emily Wanjiru Kinyua v Githunguri Dairy Farmers Cooperative Society [2021] KEELRC 1276 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1276/eng@2021-07-09

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