Technik Diesel Limited v Ndiku (Appeal 65 of 2019) [2023] KEELRC 3097 (KLR)
The bottom line
#Kenya's Employment Court set aside a judgment won without the employer's lawyer present, confirming that ex parte hearing dates with inadequate notice violate the right to a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Fair hearing where hearing date fixed ex parte and adjournment refused
The appellant was denied a fair hearing; the judgment is set aside and the matter remitted for rehearing before another magistrate
The appellant was served with a hearing notice received under protest showing counsel was engaged in other part-heard matters on the hearing date. The dates were obtained ex parte without adequate notice, so counsel could not attend and the trial proceeded without the appellant's input. That constitutes a violation of the right to a fair hearing warranting setting aside the judgment.
Timeliness of the appeal
The appeal was filed within time on 19th December 2019, defeating the respondent's preliminary objection on limitation
The respondent argued the appeal was filed out of time relative to the ruling of 22nd November 2019, but the court record showed the memorandum of appeal was filed on 19th December 2019, within the prescribed period.
Censure of parties' intemperate attacks on judicial officers
The court rebuked both parties for making unsubstantiated allegations of collusion and bias against courts
The respondent accused a Judge of this Court of collusion and the appellant accused the trial magistrate of bullying. The court condemned these assertions as callous and without evidence, but noted that the notice received under protest showing counsel's diary conflict was the saving grace for the appeal.
Legal principles established
#- Where a hearing date is fixed ex parte without adequate notice, denial of an adjournment to counsel engaged elsewhere vitiates the proceedings
Court orders
#- 1.Set aside the judgment, decrees and orders of the learned trial Court and remit the file for hearing afresh
- 2.Refer the case for hearing before another Magistrate to be determined by the Chief Magistrate Milimani
- 3.Release the funds deposited in Court to the Appellant
- 4.Each party to bear their own costs for the case before this Court and the one before the Magistrates Court
- On appeal from
- Chief Magistrate's Court, Nairobi Milimani Commercial Courts (Subordinate Court)
- CMEC No. 95 of 2018
- Jurisdiction invoked
- Appellate jurisdiction under the Employment and Labour Relations Court Act over appeals from subordinate courts; record does not expressly cite the enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Technik Diesel Limited v Ndiku (Appeal 65 of 2019) [2023] KEELRC 3097 (KLR)", Case Analysis (2023). CMEC No. 95 of 2018 (Appeal), Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3097/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.