Momanyi v Primarosa Flowers Limited (Cause 852 of 2019) [2023] KEELRC 3003 (KLR)
The bottom line
#Kenya's Employment Court refused to rescue an employer who skipped its own hearing, ruling that blaming your lawyer is no excuse for neglecting your case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent established sufficient cause for setting aside ex parte proceedings at the banks of final judgment
The application was dismissed; the Respondent's conduct was a pattern of negligence, not an excusable mistake by Counsel
The Respondent blamed its former Advocates but failed to explain why no witness statement was filed despite two adjournments and adequate opportunity. It filed its Response out of time without leave, persisted in not filing a witness statement, and failed to attend court. It did not state what action it took to follow up its case. The court concluded this was not an isolated excusable mistake and no sufficient cause was shown.
Whether a litigant should be excused on the ground that its failure to attend was the fault of its Advocates
No; litigants are duty bound to follow up on their cases and cannot simply blame their Advocates
Relying on Safaricom Limited v Josenga Company Limited and Thyaka Nthenya Jane v Mulandi Mutinda, the court held that while a litigant should not suffer due to mistakes of their Advocates, litigants must follow up on their cases to ensure their Advocates attend court and prosecute cases as they should. The Respondent heaped blame on its former Advocates but stated no action it took to follow up the case.
Legal principles established
#- A case belongs to parties, not their Advocates; every litigant must follow up their case and not simply dump it with their Advocate.
- Discretion to set aside ex parte proceedings is exercised to avoid injustice from inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice.
- Sufficient cause is a question of fact determined in the varied and special circumstances of each case; the absent party must demonstrate it was prevented from attending court by sufficient cause.
Court orders
#- 1.The Notice of Motion (seeking to review, vary and/or set aside the proceedings and directions of 18th May 2023, re-open the Claimant's case for cross-examination, and allow the Respondent to tender its evidence and call witnesses) is declined
- 2.The Respondent is directed to file final submissions within fourteen (14) days from the date of the ruling
- 3.The matter will thereafter be mentioned for purposes of fixing a judgment date
- 4.Costs of the application to the Claimant
- Jurisdiction invoked
- First-instance employment dispute; discretion to set aside ex parte proceedings exercised under the Court's inherent powers/rules of procedure (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Momanyi v Primarosa Flowers Limited (Cause 852 of 2019) [2023] KEELRC 3003 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3003/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.