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ELRCAllowedNot stated in extract· [2024] KEELRC 2170 (KLR)

Muriuki v Skyline Services Limited (Cause 1476 of 2018) [2024] KEELRC 2170 (KLR)

Employment and Labour Relations Court
30 August 2024
JRJames Rika
600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside ex parte proceedings in a Kshs. 32 million claim, confirming courts can reopen such proceedings and must hear both sides.

What this practically means

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Executive summary

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The Respondent applied to set aside ex parte proceedings of 21st November 2023 in a claim valued at over Kshs. 32 million, and to have the Claim heard afresh. The application was supported by affidavits of the Respondent's Advocates Tabitha Wambui Gitau and Martin Mwangi Kinyanjui and officer Francis Lasalo Ngonga. They explained that the Respondent's law firm, Wanjao & Wanjao, was merging with Martin Mwangi's firm; the Advocate in conduct, Gloria Lucky, left on 26th July 2023 with the original file, did not hand it over, and did not diarise the hearing date. The Respondent learned of the ex parte proceedings only when served with the Claimant's closing submissions. The Claimant opposed through his Advocate E.O. Nyakeriga, arguing the Court was functus officio, that Gloria Lucky never appeared for the Respondent, and that other Advocates (Ceasar Wanjao, Ngige Kinyua) were seized of the brief. The court found the merger explanation unconvincing and rejected sole blame on the departed Advocate, holding the failure collective. However, given the substantial claim, the Respondent's past diligence (including an earlier application to dismiss the claim for want of prosecution), and fair administration of justice, the court held it was not functus officio and allowed the application. The court ordered the proceedings of 21st November 2023 set aside, the Claim heard de novo, and the Respondent to pay the Claimant costs of Kshs. 15,000. Judgment dated 30th August 2024, delivered electronically at Nairobi by James Rika, Judge.

Key legal issues

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01

Whether blame for non-attendance can be placed on a single departed Advocate

Holding

The explanations based on the merger of firms and Gloria Lucky's default were unconvincing; the failure was collective and cannot be blamed on one departed Advocate.

Reasoning

The court record did not show Gloria Lucky had exclusive conduct of the brief; her interaction was fleeting, while other Advocates (Wanjao, Ngige Kinyua) had significant involvement. Attributing the default solely to an Advocate no longer with the firm would be inappropriate for what was a collective failure.

p. 2
02

Whether ex parte proceedings should be set aside notwithstanding weak explanation

Holding

Application granted; proceedings set aside and claim to be heard de novo, with costs to the Claimant.

Reasoning

The claim exceeded Kshs. 32 million and the Respondent had shown past diligence, including an earlier application to dismiss the Claim for want of prosecution. Fair administration of justice required that such a claim not be decided without hearing both sides, though the Respondent pays costs for its default.

p. 2

Legal principles established

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  • A court that has set down proceedings ex parte is not functus officio and may set aside ex parte proceedings.
  • It is against fair administration of justice for a substantial claim to be determined without hearing both sides.

Court orders

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  1. 1.Proceedings of 21st November 2023 are set aside, and the Claim shall be heard de novo
  2. 2.The Respondent shall pay to the Claimant costs of Kshs. 15,000
Jurisdiction invoked
Inherent power to set aside ex parte proceedings; claim pending before the ELRC (specific provision not cited)

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, "Muriuki v Skyline Services Limited (Cause 1476 of 2018) [2024] KEELRC 2170 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2170/eng@2024-08-30

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