Jared Maranga Ochungo v Kenya Safari Lodges And Hotels Limited [2021] KEELRC 1721 (KLR)
The bottom line
#A Kenyan employment court refused to reopen ex parte proceedings because the employer lied on affidavit about never being served with the hearing date.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte proceedings should be set aside for non-service of hearing notice
The application was dismissed because the court record showed the hearing date was taken in the presence of the Respondent's Counsel, rendering the claim of non-service false
The Respondent asserted it was never informed of the hearing date. The court record, however, showed the hearing date of 10th December 2020 was fixed in open court on 17th September 2020 with Mr. Mwandeje appearing for the Respondent. The supporting affidavit was therefore false, bordering on perjury, and the application had no foundation. Further, the Respondent had not filed a response to the claim at the time of the application, showing lack of interest in participating.
Whether the mistake of Counsel doctrine entitled the Respondent to relief
The Mbogo v Shah discretion was withheld because no inadvertent or excusable mistake was shown and the Respondent misled the Court
Citing Mbogo & another v Shah, the court reaffirmed that the discretion to set aside proceedings exists to avert injustice or hardship caused by inadvertent or excusable mistake, and must not be used to delay or obstruct justice. The Respondent failed to demonstrate such a mistake and compounded matters by lying to the Court. The Claimant's right to expeditious determination weighed against setting aside.
Legal principles established
#- The discretion to set aside ex parte proceedings must be exercised to avert injustice from inadvertent or excusable mistake, not to delay or obstruct justice.
- A party who lies to the Court on affidavit does not merit the exercise of the Court's discretion in its favour.
Court orders
#- 1.The Respondent's application dated 2nd March 2021 is dismissed with costs to the Claimant
- 2.Judgment on the main claim to be delivered on 22nd July 2021
- Jurisdiction invoked
- Inherent discretion of the Employment and Labour Relations Court to set aside ex parte proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Maranga Ochungo v Kenya Safari Lodges And Hotels Limited [2021] KEELRC 1721 (KLR)", Case Analysis (2021). Cause No 476 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1721/eng@2021-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.