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ELRCDismissedNot stated in judgment· [2024] KEELRC 2087 (KLR)

Odalo v Technical University of Mombasa (Cause E005 of 2024) [2024] KEELRC 2087 (KLR)

Employment and Labour Relations Court
18 July 2024
810 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen Technical University of Mombasa's closed case because its in-house lawyer missed a hearing date agreed by consent.

What this practically means

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Executive summary

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The respondent, Technical University of Mombasa, applied under Order 45 Rule 1 of the Civil Procedure Rules to set aside orders of 8 May 2024 closing its case, to recall the claimant for cross-examination and to be given an opportunity to defend the claim. Its in-house counsel, Hamisi Ali Mwadzogo, swore a supporting affidavit admitting that a hearing date for 8 May 2024 had been allocated in court by consent of the parties but that he inadvertently diarised it for 9 May 2024, discovering the error only on the evening of 8 May 2024. The claimant did not file a response and at the hearing only sought his costs. The court held that a hearing date secured by consent is binding and not a mere proposal, and that attendance in court is a core function towards access to justice that parties should not negate by their conduct. In-house counsel is an officer of the court bound by the court's rules like any other counsel, so the 'mistake of counsel' plea could not stand. The court found the supporting affidavit bare, with nothing to demonstrate the alleged lapse, noted that diligence was lacking, and observed that judgment had since been issued. It also criticised the respondent for claiming costs without offering to meet the claimant's costs. The application was dismissed with costs of Ksh.50,000 awarded to the claimant and his advocate, payable within 30 days, failing which interest would accrue at court rates. Delivered at Mombasa on 18 July 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Effect of failure to attend a hearing date allocated by consent

Holding

Non-attendance following consent is not a casual matter and parties do not aid the course of justice by deliberate failure to attend court.

Reasoning

The court held that a consent hearing date is binding. In-house counsel is an officer of the court bound by the court's rules like any other counsel, so his diarisation error cannot simply be excused as a mistake not to be visited on the litigant. The respondent admitted the consent allocation and the misdiarisation but produced no evidence of the lapse; the supporting affidavit was bare. Judgment had already been issued, and no offer to meet the claimant's costs was made.

p. 2
02

Whether the mistake of counsel should not be visited on the litigant

Holding

The link between counsel's attendance as in-house counsel and his overall duty as an officer of the court cannot be avoided by invoking the innocent litigant principle.

Reasoning

Counsel for the respondent was in-house counsel, and the court reasoned that exempting his mistake would sever the connection between his court attendance duties and his duties as an officer of the court. Attendance to secure hearing dates is a core court function towards access to justice and should not be negated by parties' conduct. Diligence was found lacking and the application was dismissed.

p. 2

Legal principles established

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  • A hearing date secured through the consent of the parties is binding and not a mere proposal pending confirmation.

Court orders

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  1. 1.The application dated 8 May 2024 is dismissed
  2. 2.Claimant awarded costs of Ksh.50,000 to be paid within 30 days, failing which the same will accrue interest at court rate

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (review/recall application)

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, "Odalo v Technical University of Mombasa (Cause E005 of 2024) [2024] KEELRC 2087 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2087/eng@2024-07-18

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