Mwangi v Waiganjo Investment Ltd (Cause 1319 of 2015) [2023] KEELRC 2153 (KLR)
The bottom line
#An employer who knew about a court hearing through its own advocates could not convince the Employment Court to undo orders made in its absence.
What this practically means
#Executive summary
#Key legal issues
#Whether service of the hearing notice upon the Respondent was proper and whether non-attendance justified setting aside the ex parte proceedings
Service was effective; the Respondent was aware of the hearing date through its own advocates who had written to it about the hearing, and the Deputy Registrar's direction was substantially complied with.
The court traced the history of representation: the Respondent withdrew instructions from Amuga & Co. Advocates, whose letters of 2nd December 2019, 18th June 2019 and 4th March 2019 showed the Respondent was informed of the hearing date. The Deputy Registrar directed service on both counsel and the Respondent in person but did not prescribe the manner of service. Since the Respondent knew of the date from its advocates, any defect in physical service caused no prejudice.
Whether the Respondent should be granted leave to file witness statements, documents and a verifying affidavit to its counterclaim out of time
Leave refused; the court's rules prescribe the manner and timelines for filing such documents and the application was found frivolous and undeserving.
The court held that even proper physical service would not have changed the timelines prescribed by the rules of the court. The Respondent had filed nothing since 2015, did not respond to the case, did not obey court orders and did not attend court for hearing. Its grounds were found frivolous and the application was dismissed with costs.
Legal principles established
#- Where a party's advocates remain on record and have communicated the hearing date to the party, service in the prescribed manner adds nothing, as the party is already aware of the hearing date.
- Court rules prescribe the manner and timelines for filing documents, witness statements and verifying affidavits, and the manner of service does not alter those timelines.
Court orders
#- 1.The Respondent's application dated 6th January 2020 is dismissed
- 2.Costs of the application to the Claimant
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and the ELRC (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Waiganjo Investment Ltd (Cause 1319 of 2015) [2023] KEELRC 2153 (KLR)", Case Analysis (2023). ELR Cause No. 1319 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2153/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.