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ELRCDismissedCause No 235 of 2015· [2023] KEELRC 1220 (KLR)

Mwangemi v Mawingo Construction 2010 Ltd (Cause 235 of 2015) [2023] KEELRC 1220 (KLR)

Employment and Labour Relations Court
25 May 2023
1,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a judgment against a company that ignored its own case for 15 months, blaming its lawyers instead.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei J) on the respondent/applicant's notice of motion seeking leave for new advocates (Miller George & Gekonde Advocates) to come on record, stay of execution of the decree, setting aside of the ex-parte judgment delivered on July 7, 2021 (Rika J), and unconditional leave to defend the suit. The applicant, through its director Clive Irskine, blamed its erstwhile advocates for failing to attend the hearing and to communicate, arguing that an advocate's mistake should not be visited on the client. The claimant opposed, noting proper service, a regular judgment, and an unexplained delay of about fifteen months in filing the application. The court noted the application was filed approximately fifteen months after judgment with no explanation for the inordinate delay, and observed that cases belong to litigants, who must follow up with their advocates. Following Charles Omwata Omwoyo v African Highlands Produce Company Limited and its own decision in Paul Ogutu v St. Kevin Hills School, the court held that a litigant who fails to follow up its case must seek its remedy against its advocates for professional negligence, not against a claimant holding a regular and valid decree. The notice of motion dated November 10, 2022 was dismissed with costs to the claimant/respondent.

Key legal issues

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01

Whether an ex-parte judgment should be set aside on the ground of an advocate's mistake or omission where the litigant itself was indolent

Holding

No. The litigant must follow up on its case; the mistake of an indolently monitored advocate should not be visited on a decree-holder, and the applicant's remedy lies against its advocates for professional negligence.

Reasoning

The court held that cases belong to litigants, who must follow up on progress and give instructions. The applicant filed its application fifteen months after judgment with no explanation for the delay. It did not show it followed up with its advocates. A claimant holding a regular and valid decree should not suffer for the applicant's or its advocates' indolence. The proper remedy is against the advocates for professional negligence, not setting aside of the judgment.

p. 3

Legal principles established

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  • Litigants have a duty to follow up on their cases with their advocates; a litigant who fails to do so cannot seek setting aside of judgment on the basis of counsel's mistake, and the remedy lies against the advocate for negligence
  • Legal practitioners must shoulder the consequences of their negligent acts or omissions like other professionals

Court orders

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  1. 1.The notice of motion dated November 10, 2022 is dismissed with costs to the claimant/respondent

Authorities

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Cases cited (2)

  • Charles Omwata Omwoyo v African Highlands Produce Company Limited
    [2002] eKLR
  • Paul Ogutu v St. Kevin Hills School
    [2023] eKLR
Jurisdiction invoked
Original employment jurisdiction of the Employment and Labour Relations Court (misa application in a suit previously determined by Rika J)

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, "Mwangemi v Mawingo Construction 2010 Ltd (Cause 235 of 2015) [2023] KEELRC 1220 (KLR)", Case Analysis (2023). Cause No 235 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1220/eng@2023-05-25

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