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ELRCAllowed· [2021] KEELRC 1288 (KLR)

Edward Waka Osare v Inter Security Limited [2021] KEELRC 1288 (KLR)

Employment and Labour Relations Court
6 July 2021
HWHellen Wasilwa
989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court reopened an employer's defence case after a missed virtual hearing, prioritising a fair hearing over procedural missteps.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court delivered virtually by Hellen Wasilwa, J, on 6th July 2021, determining the respondent/applicant's notice of application dated 9th March 2021. The applicant, through advocate Ongadi Kevin Nam of Mboga G.G & Company Advocates, sought vacation and setting aside of the orders of 9th March 2021 whereby the court had closed the defence case for non-attendance, and re-opening of the defence case for hearing on merit. The applicant explained that the case was listed for virtual defence hearing on 9th March 2021 and that the advocate misheard the time allocation as 10.50 am when the court had recorded 10.15 am; when he tried to log in at about 10.45 am he was not admitted, and the court had already closed the defence case. The claimant/respondent, through advocate Jennifer Wachira Wanjiru, opposed, asserting the advocate was present when the matter was mentioned, had taken a time allocation, and had previously been given a similar chance when the claimant's case was re-opened after closure on 12th February 2019; she urged dismissal, terming the defence a sham of mere denials. Citing Shah v Mbogo, CMC Holdings v Nzioki and Chemwolo v Kubende, and invoking section 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, the court held the applicant's mistake had been explained. To avoid condemning the respondent unheard and a miscarriage of justice, the court allowed the application, re-opened the defence case for hearing on merit, and ordered costs in the cause.

Key legal issues

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01

Whether to set aside ex-parte closure of the defence case and reinstate it for hearing

Holding

Application allowed; defence case re-opened for hearing on merit

Reasoning

The court found the applicant had explained the inadvertent failure to log in at the correct virtual hearing time, having misheard the time allocation as 10.50 am rather than 10.15 am. Balancing the risk of a miscarriage of justice in condemning the respondent unheard against the claimant's complaint of delay, the court invoked its discretion under section 3A of the Civil Procedure Act and Order 12 Rule 7, guided by Article 159(2)(d), to reinstate the defence case.

p. 2

Legal principles established

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  • A court should exercise its discretion to set aside an order closing a party's case where non-attendance is explained, to avoid condemning a party unheard and to further substantial justice over procedural technicality.

Court orders

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  1. 1.Application dated 9th March 2021 allowed
  2. 2.Order of 9th March 2021 closing the defence case set aside
  3. 3.Respondent's case re-opened for hearing and determination on merit
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (4)

  • Shah –v- Mbogo
    [1967] EA 116
  • CMC Holdings –v- Nzioki
    [2004] eklr
  • Philip Keipto Chemwolo –v- Augustine Kubende
    [1986] eklr
  • Joswa Kenyatta –v- Civicon Limited
    [2020] eklr
Jurisdiction invoked
Inherent powers under section 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules; 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, "Edward Waka Osare v Inter Security Limited [2021] KEELRC 1288 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1288/eng@2021-07-06

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