Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in the judgment (application dated 24.04.2023)· [2024] KEELRC 280 (KLR)

Karani v Parpia (Employment and Labour Relations Cause 574 of 2018) [2024] KEELRC 280 (KLR)

Employment and Labour Relations Court
16 February 2024
OKOcharo Kebira
1,729 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court reopened a case after a lawyer missed the hearing date due to an honest diary mistake, showing courts will forgive genuine errors.

What this practically means

#

Executive summary

#
The Respondent/Applicant, by Notice of Motion dated 24 April 2023 through Kirwa Koskei & Company Advocates, sought setting aside of the court's order of 21 March 2023 closing the Claimant's case, reopening of the matter for cross-examination of the Claimant, and an opportunity to present its defence and Counterclaim. The Applicant explained that counsel picked a hearing date of 21 March 2023 before the Deputy Registrar at a time when the firm had not procured a 2023 diary; the clerk misdiarised the matter for 22 March 2023; and on the hearing day counsel, then at Thika law courts for an inquest, telephoned the Claimant's counsel ten minutes before noon seeking an adjournment, and expected the matter would be mentioned to the court. The Claimant/Respondent opposed, arguing the hearing notice had been served by email, counsel had ample time to attend, and equity aids the vigilant, noting submissions had already been filed. The court framed a single issue: whether to exercise discretion in the Applicant's favour. Applying Shah v Mbogo, Wachira Karani v Bildad Wachira, Parimal v Veena Bharti and Richard Nchapai Leiyangu v IEBC, the court found the Applicant had taken the date and served notice, demonstrating diligence, and that the explanations were candid, reasonable and excusable, and uncontroverted by the replying affidavit. The court held it would be a miscarriage of justice to deny a party who desires to be heard the opportunity to prosecute its case. The application was allowed: the order closing the Claimant's case was set aside, the Claimant to be recalled for cross-examination and re-examination, the Applicant to testify on defence and Counterclaim, each party bearing its own costs, and the matter to be heard on a priority basis.

Key legal issues

#
01

Whether the Applicant offered sufficient cause for non-attendance so as to justify setting aside the ex parte proceedings and reopening the Claimant's case

Holding

Yes. The Applicant gave a candid and excusable explanation: the date was taken before the firm procured a 2023 diary, the clerk misdiarised the matter for 22nd rather than 21st March 2023, and counsel explained his predicament to the Claimant's counsel on the hearing day. The application was allowed.

Reasoning

The court applied Shah v Mbogo and related authorities, holding that the discretion to set aside ex parte proceedings exists to avoid injustice from accident, inadvertence or excusable mistake. The Applicant had taken a hearing date and served notice, showing diligence rather than deliberate absence. The Claimant's replying affidavit failed to address the key explanations, so the reasons stood uncontradicted and were found reasonable, candid and excusable.

p. 3

Legal principles established

#
  • The jurisdiction to set aside ex parte proceedings is wide and unfettered, to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice
  • The fundamental factor before exercising the discretion is whether the applicant has demonstrated sufficient cause warranting setting aside of the ex parte proceedings
  • It would be a miscarriage of justice to deny a party who has expressed a desire to be heard the opportunity of prosecuting his case where the reason for absence is reasonable and excusable

Court orders

#
  1. 1.The order hearing closing the Claimant's/Respondent's case and reserving the matter for submissions is set aside
  2. 2.The Claimant/Respondent shall be recalled for cross-examination by Counsel for the Respondent/Applicant, and re-examination by her counsel
  3. 3.The Respondent/Applicant shall thereafter testify in support of his defence and Counterclaim
  4. 4.Each party shall bear its own costs
  5. 5.The matter shall be heard on a priority basis

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (4)

  • Shah v Mbogo and Another
    [1967] EA 116
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Parimal v Veena Bharti
    Civil Appeal 1467 of 2021 [2011]
  • Richard Nchapai Leiyangu v IEBC & 2 others
Jurisdiction invoked
Inherent discretion to set aside ex parte proceedings (Civil Procedure Act, Section 1B; Article 159(2)(d) of the Constitution referenced in the delivery order)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Karani v Parpia (Employment and Labour Relations Cause 574 of 2018) [2024] KEELRC 280 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 24.04.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/280/eng@2024-02-16

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