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ELRCDismissed· [2021] KEELRC 2395 (KLR)

Rahab Wambui Nganga v Rural Development Solution Limited [2021] KEELRC 2395 (KLR)

Employment and Labour Relations Court
1 December 2021
1,239 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 threw out a company's bid to overturn a judgment because it ignored its own case for over a year and wrongly blamed its former lawyer.

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 at Eldoret (J. N. Abuodha J) on the respondent/applicant's Notice of Motion dated 26th May, 2021. The applicant, a company that had been dissolved by gazette notice on 12th July, 2019, sought stay of execution of a judgment entered against it on 19th May, 2021, setting aside of the proceedings and consequential orders, an opportunity to cross-examine the Claimant, and a fresh hearing with new advocates (Mose Nyambega & Company) replacing Kirwa & Company, which had ceased acting in November 2019. The applicant's supporting affidavit deponed that its former advocates withdrew without notice and that it learned of the suit only upon being served with judgment. The Claimant opposed, showing that the application to cease acting was served on the respondent and allowed only after proof of service, that hearing notices were served and acknowledged, and that the respondent took no steps to follow up its case since 2019. The Court traced the history: counsel withdrew on 27th November, 2019 after losing contact with the client; service of the withdrawal application was effected at the respondent's last known postal address, which the respondent never denied; and the director, Julius Kitur, was served by WhatsApp. The Court held that a litigant cannot blame its advocate where it failed to keep in contact - precisely why counsel withdrew - and that the application was inordinately late and not brought in good faith. The application was dismissed with costs.

Key legal issues

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01

Whether the respondent was duly served with the former advocates' application to cease acting and with the hearing notice

Holding

Service was properly effected through the respondent's last known postal address and through its director, Julius Kitur, via WhatsApp; the respondent did not deny the address

Reasoning

The Court found that Mr. Kirwa served the application to cease acting on the postal address 'P.O Box 2000 Village Market, Nairobi', which the respondent never denied was its last known address. Claimant's counsel further served director Julius Kitur by WhatsApp. Service of the hearing notice sent on 19th January, 2021 was acknowledged. The Court therefore found the claim of ignorance of the suit incredible.

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02

Whether the application was brought promptly and in good faith

Holding

The application was inordinately late and not brought in good faith, and was dismissed

Reasoning

The former advocate withdrew on 27th November, 2019, yet the matter was heard on 16th March, 2021 - some one year and three months later - and the respondent took no steps in the interim to follow up its case. The Court held that a litigant cannot blame its advocate where it failed to keep in regular contact, the very reason the advocate withdrew. The application was therefore dismissed with costs.

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Legal principles established

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  • A party to a suit bears responsibility to follow up the progress of its case with its advocates and cannot simply blame the advocate for failing to update it

Court orders

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  1. 1.The respondent/applicant's Notice of Motion dated 26th May, 2021 is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the employment dispute and interlocutory application therein

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, "Rahab Wambui Nganga v Rural Development Solution Limited [2021] KEELRC 2395 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2395/eng@2021-12-01

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