Mutabari v Vipingo Ridge Limited (Cause E018 of 2021) [2022] KEELRC 1338 (KLR)
The bottom line
#Kenya's Employment Court allowed a party to file documents late despite a weak excuse, choosing a full hearing over punishing missed deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether to enlarge time for filing of documents and witness statements despite an unsatisfactory explanation for delay
The Court allowed the application, holding that although the explanation was unsatisfactory, substantial justice over strictures of procedure and the right to be heard favoured exercising discretion in the Respondent's favour
The Court noted the orders sought were discretionary and considered the parties' submissions. It acknowledged the Respondent's explanation for delay was unsatisfactory, but relied on authority that dismissal or striking out should be exercised sparingly and that substantial justice should be elevated over the strictures of rules of procedure, and that errors and lapses should not deter a litigant from pursuing their right. A court cannot decide a dispute without hearing both parties.
Applicable procedural framework for enlargement of time in ELRC
The ELRC (Procedure) Rules 2016 are silent on enlargement of time fixed by the Court, so the Court resorts to the Civil Procedure Rules, specifically Order 50 Rule 6
The Court observed that the ELRC (Procedure) Rules 2016 contain no provision on enlargement of time where time is fixed by the Rules or by court order. It therefore applied its established practice of resorting to the Civil Procedure Act and Rules, and invoked Order 50 Rule 6 which empowers the Court to enlarge limited time even where the application is made after expiry of the time appointed.
Legal principles established
#- Where the ELRC Procedure Rules are silent on a procedural issue, the Court resorts to the Civil Procedure Act and Rules
- Under Order 50 Rule 6 the Court may enlarge limited time even after expiry, on terms as the justice of the case requires
Court orders
#- 1.Time within which the Respondent ought to have filed a list and bundle of documents, list of witnesses and witness statements is enlarged
- 2.The Respondent's list of witnesses and bundle of documents dated 26th November 2021 and filed on 29th November 2021 deemed duly and properly filed
- 3.The Respondent's further list and bundle of documents, amended list of witnesses and witness statements of Edward Memo Amaleba, Simon Karanja and Gideon Fondo Ngome dated 28th February 2022, and the witness statement of Esther Muli filed 8/3/2022, deemed duly and properly filed
- 4.Both parties granted leave to file and serve such other and/or further documents and witness statements as may be necessary within fourteen days of the Ruling
- 5.Mention on 26th July 2022 for fixing of a hearing date
- Jurisdiction invoked
- Inherent discretionary power to enlarge time under Order 50 Rule 6 of the Civil Procedure Rules, resorted to in the absence of a provision in the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutabari v Vipingo Ridge Limited (Cause E018 of 2021) [2022] KEELRC 1338 (KLR)", Case Analysis (2022). ELRC suit filed 18th February 2021, Memorandum of Claim dated 28th January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1338/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.