Ocharo v Anti - Female Genital Mutilation Board & another; Salaries and Remuneration Commission & 8 others (Interested Parties) (Petition E013 of 2021) [2025] KEELRC 903 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court set aside orders made without a hearing, ruling that a lawyer's mistake should not punish an innocent party.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 11th July, 2023, issued in the absence of the Respondents' counsel, should be set aside
The court set aside the orders, finding the Respondents' absence resulted from an excusable mistake by counsel and that setting aside was necessary to avoid injustice and do substantive justice
The court accepted the explanation of a change of counsel at the Office of the Attorney General, the handover omissions and the failure to diarise the mention date. It noted decisions holding that mistake of counsel should not be visited on an innocent litigant, that a decision made without hearing a party breaches natural justice, and that the Respondents are public entities with a risk of loss of public funds if the application is not heard on merit.
Whether the Applicants should be granted leave to reply to the Petitioner's application dated 20th March, 2023
Leave was granted, with the reply to be filed within 3 days of the order
Although the Respondents had earlier been allowed 14 days to lodge a reply and failed to do so, the court held that having reopened the matter it was necessary to allow leave so that substantive justice is done to all parties.
Legal principles established
#- The discretion to set aside ex parte proceedings is to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct justice
- Mistake or negligence of counsel should not be visited upon an innocent litigant
Court orders
#- 1.An order setting aside the orders of the court issued on 11th July, 2023
- 2.Leave granted to the Applicants to reply to the Petitioner's application dated 20th March, 2023 within 3 days of the order
- 3.Parties to set the application dated 20th March, 2023 for hearing on a priority basis
- 4.The Respondents/Applicants to bear the costs of the application
- Jurisdiction invoked
- Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Section 16 of the Employment and Labour Relations Court Act; Sections 1B(1)(a) and 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ocharo v Anti - Female Genital Mutilation Board & another; Salaries and Remuneration Commission & 8 others (Interested Parties) (Petition E013 of 2021) [2025] KEELRC 903 (KLR)", Case Analysis (2025). Petition No E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/903/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.