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ELRCPartially AllowedCause No 223 of 2016· [2021] KEELRC 1731 (KLR)

Stanslous Mangi Kahindi v Auto Continental Limited [2021] KEELRC 1731 (KLR)

Employment and Labour Relations Court of Kenya
13 May 2021
BOByram Ongaya
1,233 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 a case closed after a lawyer's date mix-up, holding that clients shouldn't lose their day in court over an advocate's honest mistake.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling at Mombasa, delivered by Byram Ongaya J on 13 May 2021, determined a notice of motion dated 10 July 2020 filed by the respondent (through Khatib & Company Advocates) seeking to set aside and vacate orders of 2 December 2019 closing the respondent's case for non-attendance, and to grant leave to prosecute the case unconditionally. The application was grounded on the advocates' inadvertent and erroneous recording of the mention date, and was supported by the affidavit of David Mwathi, the respondent's Transport Coordinator. The claimant opposed through grounds of opposition, submitting that the date had been taken by consent, that the closure order was served on the applicant's counsel, and that the applicant had delayed nearly a year in bringing the application; the claimant relied on Ringera J's holding in Omwoyo v African Highlands & Produce Company Limited on advocates bearing the consequences of their negligence. The applicant relied on Pithon Waweru Maina v Thuka Muguria on excusable mistake. Revisiting the record, the court found that both parties' advocates had contributed to the delay: the claimant's counsel had also failed to attend mentions and had belatedly filed submissions on 2 June 2020 without leave. Considering section 3 of the ELRC Act's objectives of fair, expeditious and proportionate determination and the disruptive Covid-19 pandemic, the court allowed the application, setting aside the 2 December 2019 closure orders, granting the respondent unconditional leave to prosecute his case, directing the parties to fix a further hearing date on a priority basis, and awarding costs of the application in the cause.

Key legal issues

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01

Whether an advocate's mistake in recording a court date should be visited upon the client

Holding

The court allowed the application, finding the respondent's non-attendance was due to an inadvertent and erroneous date recording by its advocates, a fact not disputed by the claimant.

Reasoning

The court revisited the record and found that both parties' advocates had contributed to the delay in progression of the suit towards judgment. The claimant had also belatedly filed submissions without leave. Balancing these factors, the objectives in section 3 of the ELRC Act, and the disruption caused by the Covid-19 pandemic, the court found it just to set aside the closure orders and grant unconditional leave.

p. 2
02

Whether both parties contributed to the delay

Holding

The court found that both parties' advocates had in one way or another contributed to the delay, the claimant having failed to attend mentions and having filed submissions late without leave.

Reasoning

The record showed the claimant's counsel was absent on 13.02.2020 and 13.03.2020 and filed submissions dated 18.03.2020 only on 02.06.2020 without any order regularising them. The court held that by this conduct the claimant substantially contributed to the delayed submissions and progression to judgment. This informed the decision to allow the application with costs in the cause rather than outright.

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Legal principles established

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  • Courts will exercise their discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake, and will not fetter that discretion.
  • The court's overriding objective under section 3 of the ELRC Act requires fair, expeditious and proportionate determination of disputes.

Court orders

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  1. 1.The orders given by the Court on 02.12.2019 marking the proceedings closed are set aside and the respondent is granted leave to prosecute his case unconditionally
  2. 2.Parties to take directions and fix a date for further hearing of the suit on priority basis
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure Act Cap 21sections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules 2010Order 51 rule 1; Order 12 rule 7
  • Employment and Labour Relations Court Act, 2011section 3

Cases cited (2)

  • Pithon Waweru Maina –Versus- Thuka Muguria
    (1983) eKLR
  • Omwoyo – Versus- African Highlands & Produce Company Limited
    [2002] 1 KLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act Cap 21; Order 51 rule 1 and Order 12 rule 7 of the Civil Procedure Rules 2010; Employment and Labour Relations Court Act, 2011 (section 3)

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, "Stanslous Mangi Kahindi v Auto Continental Limited [2021] KEELRC 1731 (KLR)", Case Analysis (2021). Cause No 223 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1731/eng@2021-05-13

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