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ELRCPartially AllowedNot stated in the excerpt· [2021] KEELRC 1967 (KLR)

Christine Wambui Kagai v Langata Hotel Development Limited & 3 others [2021] KEELRC 1967 (KLR)

Employment and Labour Relations Court
12 March 2021
NMNzioki Wa Makau
1,880 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 by Nzioki Wa Makau J on the Respondents' application seeking extension of time to file their response, an order that the memorandum of response dated 15th December 2020 be deemed properly on record, and setting aside the orders of 16th December 2020 directing the cause to proceed as an undefended cause. The Claimant opposed the motion through a preliminary objection contending that having pronounced itself on 16th December 2020 that the cause proceeds to formal proof, the Court was functus officio and could not sit on appeal over its own decision, and further that no excusable mistake or compelling reason justified the delay, the Respondents having been indolent. The Court first resolved the jurisdictional challenge, holding that at the directions stage it was not functus officio because its function is to hear and determine the suit, which had yet to happen. The Court then applied the principles in CMC Holdings Limited v Nzioki on setting aside ex parte orders, noting that the discretion must ensure a litigant does not suffer injustice from excusable mistake, inadvertence, accident or error, and that a defence raising triable issues must be considered. Finding that the Respondents had filed a defence raising triable issues and that there was inadvertence in strict compliance with filing directives, the Court allowed the application subject to conditions: costs of Kshs. 20,000/- payable to the Claimant's Counsel within 14 days, and filing of a fresh defence within 7 days, failing which the suit would proceed as undefended upon directions on 14th April 2021.

Key legal issues

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01

Functus officio at the directions stage

Holding

The Court held it was not functus officio; its function is to hear and determine the suit, which had not yet happened

Reasoning

The Court adopted Black's Law Dictionary's definition of functus officio and reasoned that the directions of 16th December 2020 were not the full performance of its commission. The Court's functions were not merely to pronounce directions but to hear and determine the suit, which remained pending. It therefore retained authority to entertain the Respondents' application.

p. 2
02

Extension of time to file response and setting aside the undefended-cause order

Holding

The application was allowed because a defence raising triable issues had been filed and the delay amounted to excusable mistake

Reasoning

Applying CMC Holdings Limited v Nzioki, the Court exercised its discretion to ensure a litigant does not suffer injustice from excusable mistake, inadvertence, accident or error. Since the Respondents had a defence raising triable issues, denying them a hearing would offend the right to be heard. The discretion was conditioned on costs and strict timelines for filing a fresh defence.

p. 2

Legal principles established

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  • A court is not functus officio at the stage of directions where it remains seized of the suit and has yet to hear and determine it
  • In setting aside an ex parte order, the court's discretion must consider both the reason for default and whether the defence raises triable issues

Court orders

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  1. 1.Costs of Kshs. 20,000/- assessed payable to the Claimant's Counsel within 14 days
  2. 2.Respondents to file a fresh defence within 7 days, the previous (struck out) defence to be taken as the draft defence
  3. 3.If the Respondents do not comply with the costs or filing directives, the suit will proceed as undefended upon directions on 14th April 2021

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 15(d)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 13(5)
  • Constitution of Kenya, 2010Article 159 (and Article 159(2))

Cases cited (7)

  • Salome Maina v Chief Officer Laikipia County
    [2018] eKLR
  • Toshike Construction Company Limited v Harambee Co-operative Savings & Another
    [2019] eKLR
  • Sebei District Administration v Gasyali
    (1968) EA 300
  • Kiai Mbaki & 2 Others v Gichuhi Macharia & Another
    [2005] eKLR
  • Shakila Begum Ali (as personal representative of the Estate of the Late Mehboob Mohamed Abdul Gafoor Mohamed Mulah also known as Mehboob Mohamed Abdulgafoor and Mehboob Mullah) v Vescon Properties Limited & Another
    [2019] eKLR, Mombasa ELC 171 of 2017
  • Chacha Mwita Mosenda v Baya Tsuma Baya & 2 Others
    [2017] eKLR, Malindi HC Civil Appeal No. 23 of 2014
  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court; Employment and Labour Relations Court (Procedure) Rules 2016, Rule 13(5); Article 159 of the Constitution invoked

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, "Christine Wambui Kagai v Langata Hotel Development Limited & 3 others [2021] KEELRC 1967 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1967/eng@2021-03-12

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