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ELRCAllowedCause No 1054 of 2014· [2022] KEELRC 387 (KLR)

Grace Nduta Kangari & 74 others v Rioki Coffee Estate Company (1970) Limited [2022] KEELRC 387 (KLR)

Employment and Labour Relations Court
18 March 2022
1,600 words in judgment
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The bottom line

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A Kenyan employment court reopened a case missed by an employer's lawyer, but made the employer pay Kshs.15,000 in costs for the delay.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) determined the Respondent's notice of motion dated 18th June, 2021 seeking to set aside the ex parte proceedings of 25th May, 2021 and to re-open the case. The Respondent's counsel had failed to attend the hearing, whereupon the court closed the Respondent's case and directed the filing of written submissions. The new advocates on record for the Respondent explained that the former counsel had allegedly been held up in another matter before the Kiambu High Court. The 5th Claimant, Gitari George, opposed, asserting that the advocates had been duly served with a hearing notice as evidenced by an affidavit of service, and that the application was designed to delay conclusion of an aged matter. The court framed a single issue: whether sufficient cause had been established. Relying on Shah v Mbogo and Wachira Karani v Bildad Wachira, it held that the explanation was hearsay and unsupported by any proof such as a cause list or diary entry. Nonetheless, because the Claimants had not yet filed submissions and judgment had not been rendered, and because declining relief would lock the Applicant out of the seat of justice, the court reluctantly allowed the application. It set aside the ex parte proceedings of 25th May, 2021 to the extent of reopening the hearing, awarded the Claimant throw away costs of Kshs.15,000/- payable before the hearing date, and directed that a hearing date be fixed on a priority basis. The ruling was delivered at Nairobi on 18th March 2022.

Key legal issues

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01

Whether counsel's alleged engagement in another court constitutes sufficient cause for non-attendance justifying setting aside of ex parte proceedings

Holding

The proffered reason was not proved - the deponent was not the counsel said to be in Kiambu High Court, making the assertion hearsay unsupported by any documentary proof; nevertheless the application was allowed because the case had not been concluded and declining would lock the Applicant out of justice

Reasoning

The court found that counsel who swore the supporting affidavit was not the counsel alleged to have been held up in Kiambu High Court, rendering the evidence hearsay; there was no cause list, proceedings, or diary entry proving the conflicting engagement. Ordinarily this would fail the sufficient cause threshold. However, since the Claimants' case was closed but submissions were not yet filed and judgment had not been delivered, the court exercised its discretion in favour of reopening, balancing the prejudice of the matter's age against access to justice, and imposed throw away costs on the Applicant.

p. 2

Legal principles established

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  • The court's discretion to set aside ex parte proceedings is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, but not to assist a party who deliberately obstructs or delays the course of justice
  • Sufficient cause is a question of fact; the defendant must demonstrate that he was prevented from attending court by a sufficient cause
  • A court may reluctantly allow setting aside of ex parte proceedings where declining would lock a party out of the seat of justice, even absent a fully proved reason for non-attendance

Court orders

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  1. 1.The ex-parte proceedings of 25th May 2021 are set aside to the extent that the hearing is reopened and the Applicant is allowed to cross-examine the Claimant and prosecute its defence
  2. 2.The Applicant is condemned to pay the Claimant's throw away costs of Kshs.15,000/- before the hearing date
  3. 3.A hearing date to be fixed at the registry on a priority basis

Authorities

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Legislation

  • Constitution of Kenya 2010Article 50
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure Rules, 2010Orders 5 and 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 22(1)
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (4)

  • James Kanyitta Nderitu & Another v Marios Philotas Ghikas & Another
    (2016) eKLR
  • Shah v Mbogo
    (1967) EA 116
  • Gulf Fabricators v County Government of Siaya
    (2020) eKLR
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to set aside ex parte proceedings under the Employment and Labour Relations Court (Procedure) Rules, 2016 read with the Civil Procedure Rules, 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, "Grace Nduta Kangari & 74 others v Rioki Coffee Estate Company (1970) Limited [2022] KEELRC 387 (KLR)", Case Analysis (2022). Cause No 1054 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/387/eng@2022-03-18

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