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ELRCAllowedNot stated in the judgment (ex-parte notice of motion dated 23rd July, 2021; application for review dated 15th November, 2021)· [2022] KEELRC 670 (KLR)

Joseph Maina Machangi v County Government of Nyandarua & 2 others [2022] KEELRC 670 (KLR)

Employment and Labour Relations Court
10 February 2022
AMANNA NGIBUINI MWAURE
1,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside salary-arrears orders issued without a hearing, confirming that missed emails can be excused — but delay carries a price tag.

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 Nairobi (Mwaure J) on an application dated 15th November, 2021 by the County Government of Nyandarua seeking to set aside or review ex-parte orders issued on 17th August, 2021, which had directed it to deposit Kshs.641,610/= being alleged salary arrears of May to July 2021 in favour of the employee. The County Government argued that the employee had failed to disclose that his employment had been terminated by April, 2021 and that his last salary had been paid then; its counsel also explained she missed service of the original ex-parte application because of the volume of emails in her docket, and urged that an advocate's mistake should not be visited on the client. No response or submissions were filed in opposition to the review application. The court canvassed the principles governing review and setting aside under Section 33 of the Employment and Labour Relations Court Rules, applying Gulf Fabricators v County Government of Siaya, Chemwolo v Kabende, Evans v Bartlam, Shah v Mbogo and William Ntomauta M'Ethenya, and invoked Article 159 of the Constitution. Holding it fair and reasonable that all parties be heard on the merits, the court set aside the orders of 17th August, 2021 in their entirety, granted leave to file responses to the 23rd July, 2021 application within 14 days, fixed mention for 23rd March, 2022, and, noting the Applicants' slothfulness and unreasonable delay, awarded throw-away costs of Kshs.50,000/= to the employee.

Key legal issues

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01

Whether the ex-parte orders of 17th August, 2021 should be set aside/reviewed

Holding

Yes - the court exercised its discretion under Section 33 of the ELRC Rules and Article 159 of the Constitution to set aside the orders so that parties could be heard on the merits.

Reasoning

The court found the application was not premised on an irregular or erroneous ruling but on the Applicants' failure to respond because counsel missed the served email due to a busy docket. Relying on Section 33 of the ELRC Rules, Shah v Mbogo, Gulf Fabricators and William Ntomauta M'Ethenya, the court held that justice is better served when both parties are heard on merits, despite the Applicants' delay, and set aside the orders with throw-away costs.

p. 3
02

Whether leave should issue to file responses out of time

Holding

Yes - leave granted to file and serve responses to the 23rd July, 2021 application within 14 days.

Reasoning

Having set aside the ex-parte orders, the court granted leave so the underlying application could be canvassed inter partes, with corresponding liberty for the Respondent/Applicant to respond within 14 days of service, and scheduled a mention for further directions.

p. 3

Legal principles established

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  • The power to set aside or review a judgment or ruling is discretionary and is exercised to render substantive justice.
  • The discretion to set aside an ex-parte judgment exists to avoid injustice from inadvertence or excusable mistake, not to reward deliberate obstruction or delay.
  • Justice is better served when both parties are heard on the merits unless a party is merely delaying or obstructing justice.

Court orders

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  1. 1.The court's ex-parte order delivered on 17th August, 2021 is set aside in its entirety pending hearing and determination of the application
  2. 2.Applicants/Respondents granted leave to file and serve their responses to the notice of motion dated 23rd July, 2021 within 14 days of the ruling
  3. 3.Respondent/Applicant to respond within 14 days of service
  4. 4.Mention on 23rd March, 2022 for further directions on this application and the application dated 12th January, 2022
  5. 5.Applicants/Respondents to pay throw-away costs of Kshs.50,000/= to the Respondent/Applicant before the next mention date

Authorities

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Legislation

  • Employment and Labour Relations Court RulesSection 33
  • Constitution of KenyaArticle 159 (and Article 159(2)(d), 48 in the COVID order)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • GULF FABRICATORS VS COUNTY GOVERNMENT OF SIAYA NO.10 OF 2019
  • PHILIP KIPTOO CHEMWOLO & MUMIAS SUGAR CO. LIMITED VS AUGUSTINE KIBENDE
    (1982 – 1988) KAR 1036
  • EVANS VS BARTAM
    (1993) Ac. 473
  • SHAH V MBOGO & ANOTHER
    (1967) E.A
  • WILLIAM NTOMAUTA M’ETHENYA VS BAIKIAMBA KIRIMAMA
    (2017) eKLR
Jurisdiction invoked
Section 33 of the Employment and Labour Relations Court Rules; Article 159 of the Constitution

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, "Joseph Maina Machangi v County Government of Nyandarua & 2 others [2022] KEELRC 670 (KLR)", Case Analysis (2022). Not stated in the judgment (ex-parte notice of motion dated 23rd July, 2021; application for review dated 15th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/670/eng@2022-02-10

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