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ELRCAllowedNot stated on the face of the judgment· [2024] KEELRC 1642 (KLR)

Rachuonyo v Jaramogi Oginga Odinga University of Science and Technology (Cause E053 of 2022) [2024] KEELRC 1642 (KLR)

Employment and Labour Relations Court
27 June 2024
CBC. N. Baari
1,661 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

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The Employment Court in Kisumu allowed an employer to defend an employment claim late, after revealing settlement talks and a Kshs 1.16 million payment that had not been disclosed earlier.

What this practically means

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Executive summary

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The Respondent/Applicant in an employment claim moved the Employment and Labour Relations Court at Kisumu by a motion dated 15th December 2023 seeking review of orders that the hearing had closed and that judgment would be delivered on 19th December 2023, and leave to file a defence out of time. The application was supported by Ivor Aska Nyamita, the Applicant's Legal Officer, who explained that the failure to defend was occasioned by ongoing out-of-court settlement efforts which had culminated in a partial payment of Kshs. 1,162,941.00 to the Claimant. The Claimant, George Onyango Rachuonyo, opposed the motion, asserting that no consent was reached, that any payment was made on the Applicant's own initiative, and that the Applicant had not justified the delay, particularly given numerous adjournments at its instance. The court framed a single issue: whether the Applicant deserved the orders sought. Relying on Rule 33(1) of the ELRC (Procedure) Rules, and noting that the judgment had been arrested leaving only the order closing the matter alive, the court found that email exchanges and the payment evidenced genuine settlement attempts not disclosed when the suit proceeded undefended. Applying the Court of Appeal's test of a triable issue in Job Kilach and Lalji, the court held that the draft defence raised triable issues. The court set aside the order that the suit proceed undefended, granted leave to file the defence out of time (deeming the annexed draft response duly filed upon payment of requisite fees), directed the parties to expedite the hearing, and ordered costs in the cause. Judgment delivered on 27th June 2024.

Key legal issues

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01

Whether the court should review its order that the suit proceed undefended and close the hearing

Holding

Review allowed - the parties had engaged in genuine out-of-court settlement attempts, culminating in payment of Kshs. 1,162,941, which the Claimant did not deny, yet this was not disclosed when the matter proceeded undefended.

Reasoning

The court found that email exchanges beginning 13th September 2023 evidenced settlement negotiations, and payment of 'final dues' was made in November 2023. The Claimant did not deny the settlement attempt or receipt of part payment, nor did he explain why this was not disclosed when the matter proceeded undefended. It would therefore be unjust to let the undefended order and the closure of the hearing stand.

p. 4
02

Whether the Applicant deserves leave to file a defence out of time

Holding

Leave granted - the draft response raises triable issues meeting the threshold for reopening the matter for hearing on the merits.

Reasoning

Applying the Court of Appeal's test in Job Kilach and Lalji, the court found the issues raised together with the draft response to the memorandum of claim raise triable issues warranting full trial. The delay was explained by the ongoing settlement attempt, and allowing the defence serves the interest of justice without irreparable prejudice to the Claimant.

p. 4

Legal principles established

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  • A triable issue is any matter raised by a defendant warranting judicial examination; it need not be one that would succeed.
  • A trial must be ordered where a triable or fairly arguable issue exists.
  • Review under Rule 33(1) of the ELRC (Procedure) Rules lies for discovery of new matter, error apparent on the face of the record, clarification, or other sufficient reason.

Court orders

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  1. 1.The order of the court directing that the matter proceeds undefended is set aside in its entirety
  2. 2.The Applicant/Respondent is granted leave to file its defence out of time, and the annexed draft response to the memorandum of claim is deemed duly filed, to be served upon payment of the requisite court fees
  3. 3.Parties to move with speed to have the matter heard on a priority basis
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure RulesOrder 45 Rules 1 and 2; Order 51 Rule 1; Order 25 Rule 2
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Constitution of KenyaArticles 48, 50, 50(2)(c)

Cases cited (2)

  • Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    (2015) eKLR
  • Lalji t/a Vakkep Building Contractors v Casousel Ltd
    (1989) KLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 45 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules; Articles 48, 50 & 50(2)(c) of the Constitution; Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rachuonyo v Jaramogi Oginga Odinga University of Science and Technology (Cause E053 of 2022) [2024] KEELRC 1642 (KLR)", Case Analysis (2024). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1642/eng@2024-06-27

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