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ELRCPartially AllowedNot stated in judgment (application dated May 15, 2023 in an ELRC cause; reference to Nakuru ELRC Cause No. 248 of 2015 as a separate matter)· [2023] KEELRC 1813 (KLR)

Wandor v Riley Falcon Security Services Limited (Employment and Labour Relations Cause 497 of 2017) [2023] KEELRC 1813 (KLR)

Employment and Labour Relations Court
27 July 2023
HWHellen Wasilwa
3,104 words in judgment
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The bottom line

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Kenya's Employment Court set aside an ex parte judgment because the employer's lawyers were never served, but ordered the employer to pay Kshs 20,000 in costs.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru, delivered by Hellen Wasilwa, J on July 27, 2023, determined the respondent/applicant's notice of motion dated May 15, 2023 seeking to set aside the ex parte proceedings of July 27, 2022 and the ex parte judgment of December 12, 2022, together with all consequential orders. The applicant, the employer, contended it was never served with hearing notices; that its advocates on record, Owiti, Otieno & Ragot, remained on record because the earlier firm's application to cease acting, dated February 28, 2022, was withdrawn on March 22, 2022; and that service on a receptionist at its Nakuru branch did not comply with rule 12(1) of the ELRC (Procedure) Rules, 2016. The claimant/respondent countered that the advocates had ceased acting, that the applicant was served at its Nakuru branch and acknowledged service, and that the applicant only stirred upon being served with a taxation notice, some five months after judgment. The applicant also asserted a defence dated March 5, 2015 raising triable issues including the employment relationship, unfair termination and terminal dues. After reviewing the record, the court found that the firm remained on record and had not been served with the hearing notice, so the ex parte hearing proceeded on an erroneous premise of service, occasioning a miscarriage of justice. The court allowed the application and set aside the ex parte proceedings and judgment, on condition that the respondent pay thrown away costs of Kshs 20,000/= to the claimant before further directions, noting the respondents' own unexplained absence on May 30, 2022 when the cause was fixed for hearing. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the firm of Owiti, Otieno & Ragot remained on record for the applicant at the time of hearing

Holding

The court found the firm was still on record since the application to cease acting was withdrawn, and the applicant's counsel had not been served with the hearing notice

Reasoning

The court traced the record: the firm of Owiti, Otieno & Ragot came on record in 2021; the earlier firm filed an application to cease acting in February 2022, which was withdrawn on March 22, 2022. The firm therefore remained on record. On July 27, 2022 the court proceeded ex parte only upon proof that the respondent (and not its counsel) had been served, an error on the record.

p. 6
02

Whether the ex parte proceedings and judgment should be set aside

Holding

Yes; the error in service occasioned a miscarriage of justice, and the application was allowed on terms

Reasoning

The court found the proceedings of July 27, 2022 were taken without service on the respondents' counsel who had properly remained on record. This error led to the respondents being condemned unheard. The court balanced this against the respondents' own absence on May 30, 2022 when they knew the cause was set for hearing, and imposed thrown away costs as a condition.

p. 6

Legal principles established

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  • Where a party's advocates on record were not served with a hearing notice and the proceedings proceeded ex parte in error, there is a miscarriage of justice warranting setting aside of the proceedings and judgment

Court orders

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  1. 1.Application allowed; ex parte proceedings of July 27, 2022 and the subsequent ex parte judgment set aside
  2. 2.Respondent/Applicant to pay thrown away costs of Kshs 20,000/= to the claimant before further directions
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d) & (e)
  • Employment and Labour Relations ActSection 12
  • Civil Procedure ActSections 1A, 1B & 3A
  • Employment and Labour Relations Court (Procedure) RulesRules 22(1), 12(1)
  • Civil Procedure RulesOrder 10 rule 11, Order 50 rule 1, Order 51 rule 1

Cases cited (6)

  • James Kanyiita Nderitu & Another v Marios Philatos Ghikas & another
    [2016] eKLR
  • Joseph M Rukiri v Thangicia M'Imunya
    [2021] eKLR
  • CMC Holdings Ltd v James Mumo Nzioki
    [2004] eKLR
  • Job Kiloch v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Riorio
    [2015] eKLR
  • Kanji Naran v Velji Ranji
    [1954] 21 EACA 202
  • Pithon Waweru Maina v Thuka Mugiria
    [1983] eKLR
Jurisdiction invoked
Article 159(2)(d) & (e) of the Constitution, section 12 of the Employment and Labour Relations Act, sections 1A, 1B & 3A of the Civil Procedure Act, rule 22(1) of the Employment and Labour Relations Court (Procedure) Rules, and order 10 rule 11, order 50 rule 1 and order 51 rule 1 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, "Wandor v Riley Falcon Security Services Limited (Employment and Labour Relations Cause 497 of 2017) [2023] KEELRC 1813 (KLR)", Case Analysis (2023). Not stated in judgment (application dated May 15, 2023 in an ELRC cause; reference to Nakuru ELRC Cause No. 248 of 2015 as a separate matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1813/eng@2023-07-27

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