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ELRCDismissedNot stated in extract· [2023] KEELRC 1009 (KLR)

Gichana v Gabriel Nyangweso AG CEO, Chemelil Sugar Co Ltd & 8 others; Auditor General (Interested Party) (Petition 8 of 2022) [2023] KEELRC 1009 (KLR)

Employment and Labour Relations Court
3 May 2023
RSRadido Stephen
1,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A court refused to reopen a judgment against government officials who ignored two chances to defend their case, blaming their lawyer too late.

What this practically means

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Executive summary

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This ruling resolves a Motion filed on 30 January 2023 by the 1st to 3rd Respondents seeking to set aside a judgment of 23 January 2023 in which the Court declared the continued stay in office of Gabriel Nyangweso (acting CEO) and Emmanuel Obetch Ngara (retired Head of Finance) of Chemelil Sugar Company Ltd unlawful for violating Articles 10 and 232 of the Constitution and the Mwongozo Code, and ordered the Cabinet Secretary, Ministry of Agriculture to recruit a new Board of Directors and advertise for a new CEO. The applicants blamed a mistake of counsel for their failure to respond and sought a fresh hearing. The Petitioner opposed, citing failure to respond within the prescribed time and absence of demonstrated substantial loss. The 4th Respondent noted the Respondents had been indulged but did not comply, and cited section 34(3) of the Public Service Commission Act limiting acting appointments. The Court found the Respondents were served on 28 October 2021, filed a Notice of Appointment, but failed to respond within the 7 days prescribed by Rule 15(2)(a) of the Mutunga Rules, and further failed to comply with directions of 13 October 2022 requiring responses by 4 November 2022. Having squandered two opportunities, the Court declined to exercise its discretion in their favour, dismissed the Motion, and awarded costs in the cause.

Key legal issues

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01

Whether the 1st to 3rd Respondents established grounds to set aside the judgment of 23 January 2023

Holding

The application was dismissed; the Respondents, though served and represented, failed twice to file responses and submissions, and the court declined to exercise its discretion in their favour.

Reasoning

The Respondents were served on 28 October 2021 and acknowledged service, filing a Notice of Appointment on 2 December 2021. Rule 15(2)(a) required a response within 7 days. They did not comply. When the matter came before this Court, they were represented on 13 October 2022 and ordered to file responses by 4 November 2022, but again did not comply for over three months. Setting aside a judgment is discretionary; the court must weigh whether the failure was deliberate or inadvertent. Having squandered two opportunities, the Respondents showed no interest in defending the Petition, and the court declined the indulgence sought.

p. 3

Legal principles established

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  • A party who is served and given multiple opportunities to respond but fails to do so cannot invoke a mistake of counsel to set aside a judgment

Court orders

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  1. 1.The Motion filed in Court on 30 January 2023 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 10 and 232
  • Public Service Commission ActSection 34(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 15(2)(a)
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 10 and 232 of the Constitution); application under the court's discretionary powers

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, "Gichana v Gabriel Nyangweso AG CEO, Chemelil Sugar Co Ltd & 8 others; Auditor General (Interested Party) (Petition 8 of 2022) [2023] KEELRC 1009 (KLR)", Case Analysis (2023). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1009/eng@2023-05-03

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