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ELRCAllowedNot stated in the judgment· [2022] KEELRC 1043 (KLR)

Boniface Momanyi Nyachae v Cannon Assurance Limited & another [2022] KEELRC 1043 (KLR)

Employment and Labour Relations Court
20 January 2022
997 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 is a ruling of the Employment and Labour Relations Court delivered virtually on 20th January 2022 by Lady Justice Hellen Wasilwa. The Respondents moved the court by Notice of Motion dated 13th July 2021, invoking section 3A of the Civil Procedure Act, Order 2 Rule 5 and Order 11 of the Civil Procedure Rules, section 13(5) of the ELRC Procedure Rules and Article 50(1) of the Constitution, seeking leave to adduce an additional witness, file an additional witness statement and put in an additional list of documents. The Respondents explained that an amended reply and documents sent to a Nakuru agent for filing were lost, with the matter held in abeyance during the Covid-19 pandemic, and that the omission was only discovered on perusal of the court file. The Claimant opposed, arguing there was no reasonable explanation for the delay, that the application was filed about five months after the missing documents were allegedly discovered, that it was meant to delay the suit, and that extension of time is an equitable remedy available only to deserving parties. The Claimant relied on the Salat principles and on Nganya Kavole v Mailu Gedion, while the Respondents relied on Salat and Almond Resort Limited v Mohamed Mahat Kuno on mistakes of counsel. The court acknowledged the delay but held that it is a court of justice and equity, that the Claimant could still counter-file and would suffer no prejudice, and in order to avoid a miscarriage of justice allowed the application. The Respondents were permitted to file their intended documents within 7 days, with costs of the application awarded to the Claimants.

Key legal issues

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01

Whether the Respondents' delay in filing their witness statement and documents should be excused

Holding

The court acknowledged the delay but excused it in the interest of a hearing on the merit, allowing the documents to be filed within 7 days

Reasoning

The court accepted that the Respondents had delayed in filing their documents and witness statements. However, it held that it is a court of justice and equity; allowing the filing would not prejudice the Claimant, who would still have an opportunity to counter-file if need be. Avoiding a miscarriage of justice and ensuring the dispute is heard on the merits outweighed the procedural lapse.

p. 2
02

Guiding principles for granting extension of time / leave to file additional documents

Holding

The court applied the Salat principles - reason for delay, prejudice to the other side, and whether the application was brought without undue delay - and found that absence of prejudice favoured allowing the application

Reasoning

Both parties invoked the principles in Nicholas Kiptoo Arap Korir Salat v IEBC: reasonable explanation for delay, absence of prejudice, and absence of undue delay. The Claimant argued the five-month delay from the mention of 18th March 2021 to filing on 23rd July 2021 was unreasonable and that extension is an equitable remedy for deserving parties. The court nonetheless found no prejudice to the Claimant and allowed the application in pursuit of a fair hearing under Article 50(1).

p. 1

Legal principles established

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  • Courts should not be curtailed by procedural technicalities in dispensing justice; procedural default should not defeat a hearing on the merit where no prejudice is caused to the other side.

Court orders

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  1. 1.The Respondents are allowed to file their intended documents (additional witness, witness statement and additional list of documents) within 7 days
  2. 2.Costs of the application to the Claimants
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 2 Rule 5 and Order 11 of the Civil Procedure Rules, section 13(5) of the Employment and Labour Relations Court Procedure Rules and Article 50(1) 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, "Boniface Momanyi Nyachae v Cannon Assurance Limited & another [2022] KEELRC 1043 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1043/eng@2022-01-20

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