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ELRCAllowedNotice of motion application dated 23rd March 2023· [2023] KEELRC 1746 (KLR)

Imbogo & 55 others v Butali Sugar Industries Limited & another (Employment and Labour Relations Cause 10 of 2023) [2023] KEELRC 1746 (KLR)

Employment and Labour Relations Court
13 July 2023
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court let an employer file its defence years late, ruling that a judgment made without jurisdiction is void and fair hearings come before strict procedure.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kakamega (Jemimah Keli J, delivered 13th July 2023) determined a notice of motion dated 23rd March 2023 by the 1st respondent seeking leave to file a reply to the memorandum of claim out of time, reopening of the claimant's case and recall of the claimants for further cross-examination. The underlying claim was filed in March 2020 at Butali magistrates' court, where interlocutory judgment was entered against the 1st respondent for non-appearance; the matter was later transferred for lack of pecuniary jurisdiction and ultimately reached this court. The claimant opposed, arguing the application was incompetent ab initio since no prayer sought setting aside of the interlocutory judgment, that the affidavit was irregularly sworn by counsel, and that the delay was inordinate. The court held that the interlocutory judgment could not stand because the magistrate who entered it had thereafter found he lacked pecuniary jurisdiction, and an act done without jurisdiction is null and void. Although the delay was found inordinate, the court found the draft defence raised triable issues, including possible duplication of claims by the claimants in other courts, and that the right to a fair trial under Article 25 is non-derogable. Applying Article 159(2) and following Richard Ncharpi Leiyagu v IEBC and Philip Chemwolo v Augustine Kubede, the court allowed the application, set aside the proceedings of 21st February 2023, reopened the claimant's case denovo, gave the 1st respondent 14 days to file its defence, awarded throw away costs of Kshs. 50,000/- to the claimants, and fixed the hearing for 19th September 2023.

Key legal issues

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01

Whether an application to enlarge time to file defence was incompetent for failure to seek setting aside of the existing interlocutory judgment

Holding

The interlocutory judgment could not stand because the court that entered it later found it lacked pecuniary jurisdiction, rendering it null and void; the technical objection was overcome under Article 159(2)(d)

Reasoning

The magistrate at Butali entered interlocutory judgment on 15th July 2020 but on 11th March 2021 found he had no pecuniary jurisdiction. Since any act done without jurisdiction is null and void, the interlocutory judgment fell with it, removing the competency objection and allowing the court to consider the application on its merits under the overriding objective.

p. 4
02

Whether inordinate delay should defeat the application despite triable issues in the draft defence

Holding

Although the delay was inordinate, the draft defence raised triable issues (termination justification, payment of dues and sub judice) and the right to a fair trial under Article 25 warranted allowing the application with costs to compensate the claimant

Reasoning

The court acknowledged inordinate delay since service in March 2020 but found the draft defence raised triable issues, including a risk of duplicated claims by the claimants in other courts. Applying Article 159(2) and the non-derogable right to a fair trial, and the Chemowolo equity approach, the court prioritised substantive justice, compensating the claimants with throw away costs.

p. 5

Legal principles established

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  • An act done by a court without jurisdiction is null and void
  • Unless there is fraud or intention to overreach, no error or default is incapable of being put right by payment of costs
  • The right to a fair trial is non-derogable and courts should err on the side of substantive justice

Court orders

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  1. 1.The proceedings of 21st February 2023 are set aside and the claimant's case re-opened to start denovo
  2. 2.The 1st respondent to file their defence in compliance with Order 11 of the Civil Procedure Rules in 14 days of this ruling
  3. 3.The claimants are at liberty within 14 days upon service to file reply to the filed defence
  4. 4.Throw away costs of Kshs. 50,000/- awarded to the claimants payable within 30 days of the order
  5. 5.Hearing of the case interpartes on the 19th September, 2023; the date to be served on the absent claimants by the 1st respondent when serving defence

Authorities

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Legislation

  • Constitution of KenyaArticles 159(2)(a),(b),(d),(e), 25(c), 48, 50
  • Employment and Labour Relations ActSection 20
  • Civil Procedure ActSections 1, 1A, 3, 3A, 63(e), 95
  • Civil Procedure Rules 2010Order 51; Order 11; Order 19 rule 3

Cases cited (6)

  • Kichamu Litten Muhenzi & 11 others v Vihiga County Public Service Board
    (2017) eKLR
  • Nyahururu Lifting Kenya Ltd v Power Management Services Limited
    (2019) eKLR
  • Josephat Muoki Kiluta v James Murisho T/A Laibon Hotel
    (2021) eKLR
  • Mark Bushur Angalai v Frodak Kenya Limited
    (2020) eKLR
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    [2013] eKLR
  • Philip Chemwolo & Another v Augustine Kubede
    [1982-88] KAR 103 at 1040
Jurisdiction invoked
Articles 159, 48, 50 of the Constitution; Section 20 of the Employment and Labour Relations Act; sections 1, 1A, 3, 3A, 63(e) and 95 of the Civil Procedure Act; Order 51 of the Civil Procedure Rules

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, "Imbogo & 55 others v Butali Sugar Industries Limited & another (Employment and Labour Relations Cause 10 of 2023) [2023] KEELRC 1746 (KLR)", Case Analysis (2023). Notice of motion application dated 23rd March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1746/eng@2023-07-13

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