[2022] KEELRC 4016 (KLR)
The court upheld the consent order entered into by the parties, which set aside the judgment delivered on January 28, 2022, admitted the respondent's statement of response out of time, and allowed the claimant to be recalled for cross-examination. The court found that the consent was valid and binding, and that...
Source-derived case information.
- Citation
- [2022] KEELRC 4016 (KLR)
- Parties
- Applicant: Lucy Andisi Elolo; Respondent: Irene Tabu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 636 of 2016
- Procedural Posture
- Employment Cause / Ruling on Post Judgment Applications and Consent Orders
- Outcome
- Judgment set aside by consent; claim to be heard de novo before another judge; holding file closed; application to stay judgment struck out.
- Judges
- J Rika
- Legal Topics
- Setting Aside Judgment, Consent Orders, Recall of Witness, Late Filing of Response
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Andisi Elolo
Applicant
Irene Tabu
Respondent
Procedural Posture
Employment Cause / Ruling on Post Judgment Applications and Consent Orders
Legal Issues
- 1 Whether the consent order setting aside the judgment and allowing the respondent to defend the claim should be upheld.
- 2 Whether the respondent's application to stay delivery of judgment after judgment had already been delivered was valid.
- 3 Whether proceedings should continue before the same judge or a different judge.
Ratio Decidendi
The court upheld the consent order entered into by the parties, which set aside the judgment delivered on January 28, 2022, admitted the respondent's statement of response out of time, and allowed the claimant to be recalled for cross-examination. The court found that the consent was valid and binding, and that throwaway costs had been paid as agreed. However, to preserve objectivity and avoid any appearance of bias, the court directed that the matter be heard de novo before a different judge, since the original judge had already taken evidence and delivered judgment. The court also struck out the respondent's application to stay delivery of judgment as it was rendered nugatory by the...
Court Disposition
Judgment set aside by consent; claim to be heard de novo before another judge; holding file closed; application to stay judgment struck out.
Orders
- Judgment delivered on January 28, 2022 is set aside with the agreement of the parties.
- The claim shall be heard de novo before another judge.
Full Case Text
Judgment text and source record
23 paragraphs
Elolo v Tabu (Cause 636 of 2016) [2022] KEELRC 4016 (KLR) (29 September 2022) (Ruling)
Neutral citation: [2022] KEELRC 4016 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 636 of 2016
J Rika, J
September 29, 2022
Between
Lucy Andisi Elolo
Claimant
and
Irene Tabu
Respondent
Ruling
1. This matter was heard in the absence of the respondent, on September 30, 2021. The respondent scheduled the hearing date, in the absence of the claimant.
2. The court delivered its Judgment in favour of the claimant, on January 28, 2022.
3. The respondent had on November 4, 2021 filed an application dated October 21, 2021, under certificate of urgency, which was placed in a holding file irregularly, without an order of the court, seeking to have the claimant recalled for cross-examination; the statement of response which had not been filed as at the time of the hearing admitted out of time; and the respondent allowed to respond to the claim.
4. The holding file seemingly, was opened because the original file was in the custody of the trial Judge, on preparation of the judgment, hearing having closed way back on September 30, 2021.
5. On December 15, 2021, the parties represented by Mr Mandala and Mr Mwasaru respectively, recorded a consent allowing the application dated October 21, 2021. The claimant was paid throwaway costs of Kshs 30,000 pursuant to the consent, on December 3, 2021,
6. After the consent orders were adopted, the respondent then presented an application dated February 4, 2022, asking the court to stay delivery of its judgment, which had already been delivered on January 28, 2022. That application serves no purpose, judgment having preceded it. It is struck off the record.
7. There is however a consent filed by the parties, effectively agreeing that judgment on record is set aside; the statement of response admitted out of time; the claimant recalled for cross-examination; and the respondent allowed to defend the claim. Throwaway costs have been paid. The consent was adopted by the parties, albeit in an irregularly opened filed.
8. The court shall uphold the consent orders, but direct that the matter is heard before another court, having taken the evidence of the claimant, and delivered a judgment. Objectivity would not be sustained, if the same court rehears the claim.It is Ordered: -a.Judgment delivered on January 28, 2022 is set aside with the agreement of the parties.b.The claim shall be heard de novo before another judge.c.The holding file to be closed and proceedings to go on, under the original file.d.The registry shall not, going forward, open holding files, without an express order issued by the relevant trial court.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, AT NAIROBI, THIS 29TH DAY OF SEPTEMBER 2022James RikaJudge