Njore v Decasa Hotel (Cause 1478 of 2016) [2023] KEELRC 1907 (KLR)
The bottom line
#A Kenyan employment court gave an employer a second chance after missing a hearing, but refused to unwind everything already decided.
What this practically means
#Executive summary
#Key legal issues
#Whether non-attendance at an ex parte hearing attributable to mistake or inadvertence of counsel warrants setting aside the orders made
Yes - the applicant demonstrated that non-attendance was not deliberate and the court exercised its discretion in its favour, but only to the extent of leaving the Respondent's case open
The court noted its discretion under Article 159(2)(d), Sections 1A, 1B and 3A of the Civil Procedure Act, Section 3(1) of the ELRC Act, Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules. Relying on Philip Chemwolo and Belinda Murai, it held blunders should not deny a party a hearing on merit. However, counsel failed to conduct due diligence despite receiving the hearing notice. The balance struck was to permit the Respondent's case to proceed while leaving the Claimant's closed case intact.
Whether the applicant's explanation of confusion on the Judiciary e-filing page was credible
The court found counsel had not conducted due diligence; the explanation did not excuse non-attendance but did not render it deliberate
The court observed that counsel did not deny receiving the hearing notice dated December 7, 2022 and adduced no evidence of due diligence into the incongruous information on the e-filing system. A call or email to the Claimant's counsel would have sufficed. Counsel also failed to peruse the court file, which would have revealed that the applicant's case remained open.
Legal principles established
#- The court has discretion to set aside its judgments, rulings and orders where the ends of justice so demand, guided by Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure Act
- Litigation belongs to a party and not to counsel; courts must ensure mistakes of counsel do not deprive a party of a hearing on merit
Court orders
#- 1.The Respondent is granted leave to file its defence, list and bundle of documents and witness statement(s) within 14 days failing which the Respondent's case shall be deemed closed
- 2.The Claimant's case closed on February 20, 2023 remains closed and shall not be re-opened
- 3.Hearing of Respondent's case on October 24, 2023
- 4.Parties shall bear own costs
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya, 2010 and Section 3A of the Civil Procedure Act (inherent power of the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njore v Decasa Hotel (Cause 1478 of 2016) [2023] KEELRC 1907 (KLR)", Case Analysis (2023). Cause No 1478 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1907/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.