Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the excerpt· [2023] KEELRC 2549 (KLR)

Bahola v Kenya National Union of Teachers & 3 others (Cause 1 of 2019) [2023] KEELRC 2549 (KLR)

Employment and Labour Relations Court
19 October 2023
1,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that lawyers who don't update their email address of record can't escape court dates missed because service went to the old address.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarū, J) determined a notice of motion dated 28 August 2023 by which the respondents sought to set aside ex parte proceedings of 31 July 2023 and to have the hearing reopened. The respondents, through advocate Conrad Atiang, contended they were never served with the hearing notice, as service was effected on smsadvocatesllp@gmail.com, a defunct mailbox, whereas their working address was info@smsadvocates.com. The claimant, through advocate Patrick Shujaa Wara, filed an affidavit of service showing service at the challenged address and noted that the respondents had previously received documents, including written submissions, through the same address. The court traced the hearing history: adjournment on 24 May 2023 at the respondents' request, and their absence on 4 July and 31 July 2023 despite service to the same email address. Holding that it is counsel's duty to issue notice of any change of address, physical or virtual, and applying Section 3(5) of the Interpretation and General Provisions Act via Paul Theuri Mutahi v Family Bank Limited and Rules 4, 10 and 13 of the ELRC (Procedure) Rules, 2016, the court found service proper. Nevertheless, to secure the respondents' right to be heard, the court allowed the application conditionally: the hearing was reopened for the respondents' case only, on payment to the claimant of Ksh. 30,000 in costs before the new hearing date. Delivered 19 October 2023 at Mombasa.

Key legal issues

#
01

Properness of service of the hearing notice by email

Holding

Service through smsadvocatesllp@gmail.com was proper; the respondents gave no notice of change of address and continued to receive documents at that address.

Reasoning

The court found that the challenged email address had been used throughout the litigation and the respondents received documents sent through it, including written submissions. Rule 4 of the ELRC Procedure Rules, 2016 requires parties to state addresses in pleadings, and a Notice of Change of Address is required before a new address can be relied upon. Absent such notice, service to the last known address is deemed effected.

p. 3
02

Duty to notify change of address for service

Holding

The burden lies on the party alleging its address is full or inaccessible to have issued a Notice of Change of Address.

Reasoning

Relying on Paul Theuri Mutahi v Family Bank Limited and Section 3(5) of the Interpretation and General Provisions Act, the court held that service to the last known address is deemed effected unless the contrary appears. Counsel must issue notice of any change of address, physical or virtual; the respondents attached no such notice, so their claim that the mailbox was full could not invalidate service.

p. 3
03

Whether to set aside the ex parte hearing in the interests of justice

Holding

The ex parte proceedings were set aside and the hearing reopened, but only for the respondents' case and on conditions to compensate the claimant.

Reasoning

Balancing the respondents' right to be heard against the claimant's wasted costs, the court accommodated the respondents but conditioned reopening on payment of the claimant's hearing costs of Ksh. 30,000 before the new hearing date, limiting the reopened hearing to the respondents' case only.

p. 3

Legal principles established

#

    Court orders

    #
    1. 1.The application dated 28 August 2023 is allowed on conditions
    2. 2.The hearing shall be re-opened to take the respondents' case only
    3. 3.The respondents shall meet the claimant and his advocates' costs for the hearing of their case, assessed at Ksh. 30,000, to be paid before the allocated hearing date to be allocated in court

    Authorities

    #

    Legislation

    • Advocates ActNot specified
    • Interpretation and General Provisions ActSection 3(5)
    • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 4, 10 and 13

    Cases cited (1)

    • Paul Theuri Mutahi v Family Bank Limited
      [2022] eKLR
    Jurisdiction invoked
    Inherent and procedural jurisdiction under the Employment and Labour Relations Court (Procedure) Rules, 2016 to set aside ex parte proceedings in the interests of justice

    Key timeline

    #

    Practical implications

    #

    Frequently asked questions

    #

    Cite this brief

    #

    Cite this brief

    Caselaw, "Bahola v Kenya National Union of Teachers & 3 others (Cause 1 of 2019) [2023] KEELRC 2549 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2549/eng@2023-10-19

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