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ELRCDismissedNot stated in the judgment excerpt· [2025] KEELRC 755 (KLR)

Kenya Engineering Workers Union v Engineering Supplies Limited (Cause E006 of 2024) [2025] KEELRC 755 (KLR)

Employment and Labour Relations Court
6 March 2025
578 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to rescue a company whose lawyer missed a filing deadline, calling it negligence, not an innocent mistake.

What this practically means

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Executive summary

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The respondent, Engineering Supplies Limited, filed an application dated 24 January 2025 seeking to arrest or defer the judgment due for delivery on 20 February 2025, to set aside the proceedings of 21 January 2025, and for leave to file written submissions out of time. It was supported by the affidavit of Faith Abwao Advocate, who explained that counsel attending on 18 November 2024, holding brief, mistakenly recorded the due date for submissions as 20 February 2025 instead of 21 January 2025, and argued that an advocate's mistake should not be visited on the client. The claimant neither attended nor filed a reply. The court reviewed the compliance history: parties were allowed to file submissions by 18 November 2024 after the hearing concluded on 16 October 2024; only the claimant complied; on 18 November 2024 the respondent was granted seven further days but filed nothing by the mention date of 21 January 2025, when judgment was set for 20 February 2025. The court held that no valid reason was given for the non-compliance, the extended time was not utilised, and the advocate holding brief gave no account of the error. Distinguishing innocent mistakes from professional negligence, citing Nature Pharmacy Ltd & another v Gichuhi and George Buoro v Kenindia Assurance Company Limited, the court found the application an abuse of the court process, dismissed it, and awarded costs to the claimant assessed at Ksh.50,000, payable within 30 days and thereafter attracting interest at court rates. Delivered at Mombasa on 6 March 2025 by M. Mbarũ J.

Key legal issues

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01

Whether an advocate's mistake in diarising a wrong date justifies deferring judgment and allowing late filing of submissions

Holding

No; the respondent failed to comply with the original directions and the extended 7-day period, no valid reason was given, and the application was an abuse of court process.

Reasoning

The court traced the compliance history: parties were given until 18 November 2024 to file submissions, only the claimant complied; on 18 November 2024 the respondent was given seven further days but filed nothing. The advocate holding brief never swore an affidavit explaining the wrong date taken. Deferring judgment would reward professional negligence.

p. 2
02

Whether the 'mistake of counsel should not be visited on the client' principle applied

Holding

The court accepted the principle but distinguished innocent mistakes from professional negligence, holding the latter should be called what it is and should not be accommodated.

Reasoning

The court cited Nature Pharmacy Ltd v Gichuhi on innocent mistakes and George Buoro v Kenindia Assurance on professional negligence. Since counsel attending (holding brief) never explained the error by affidavit, the court treated the failure as professional negligence rather than an innocent mistake.

p. 2

Legal principles established

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  • Not every error by an advocate is an innocent mistake; professional negligence should be called what it is, and courts should not defer judgment to accommodate such negligence.

Court orders

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  1. 1.The application dated 24 January 2025 is dismissed
  2. 2.Costs to the claimant assessed at Ksh.50,000 to be paid within 30 days, after which it should attract interest at court rates

Authorities

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Cases cited (2)

  • Nature Pharmacy Ltd & another v Gichuhi
    [2022] KECA 827 (KLR)
  • George Buoro v Kenindia Assurance Company Limited
    [2018] KEELRC 1106 (KLR)
Jurisdiction invoked
Not expressly stated in the judgment

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, "Kenya Engineering Workers Union v Engineering Supplies Limited (Cause E006 of 2024) [2025] KEELRC 755 (KLR)", Case Analysis (2025). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/755/eng@2025-03-06

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