Bahola v Kenya National Union of Teachers & 3 others (Cause 1 of 2019) [2023] KEELRC 2549 (KLR)
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
#Key legal issues
#Properness of service of the hearing notice by email
Service through smsadvocatesllp@gmail.com was proper; the respondents gave no notice of change of address and continued to receive documents at that address.
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.
Duty to notify change of address for service
The burden lies on the party alleging its address is full or inaccessible to have issued a Notice of Change of Address.
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.
Whether to set aside the ex parte hearing in the interests of justice
The ex parte proceedings were set aside and the hearing reopened, but only for the respondents' case and on conditions to compensate the claimant.
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.
Legal principles established
#Court orders
#- 1.The application dated 28 August 2023 is allowed on conditions
- 2.The hearing shall be re-opened to take the respondents' case only
- 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
- 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.