[2018] KEELRC 1907 (KLR)
The court found that the respondents' counsel's absence was due to a genuine medical emergency, which constituted sufficient cause for non-attendance. The inability to arrange for alternative representation was excusable under the circumstances. To uphold the right to a fair hearing and ensure justice is served, the...
Source-derived case information.
- Citation
- [2018] KEELRC 1907 (KLR)
- Parties
- Claimant: Joyce N. Simitu; Respondent: Stephen O. Mallowah; Respondent: Lawrence M. Bokoro; Respondent: Anti-Counterfeit Agency
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 653 of 2012
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Closure of Claimant's Case and Reopen Defence
- Outcome
- application allowed; case reopened; costs in the cause
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Reopening of Case, Right to Fair Hearing, Adjournment Due to Illness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joyce N. Simitu
Claimant
Stephen O. Mallowah
Respondent
Lawrence M. Bokoro
Respondent
Anti-Counterfeit Agency
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Closure of Claimant's Case and Reopen Defence
Legal Issues
- 1 Whether the court should set aside its order closing the claimant's case before cross-examination by the respondents.
- 2 Whether the defence case should be reopened to allow the respondents to present their case after counsel's absence due to illness.
Ratio Decidendi
The court found that the respondents' counsel's absence was due to a genuine medical emergency, which constituted sufficient cause for non-attendance. The inability to arrange for alternative representation was excusable under the circumstances. To uphold the right to a fair hearing and ensure justice is served, the court exercised its discretion to set aside the previous orders closing the claimant's case and the defence case. The case was therefore reopened to allow cross-examination of the claimant and presentation of the respondents' case, with directions on submissions stayed pending closure of the defence case.
Court Disposition
application allowed; case reopened; costs in the cause
Orders
- The orders of 16th January, 2017 closing the claimant's case and the defence case are set aside.
- The case is reopened to allow cross-examination of the claimant and presentation of the respondents' case.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 653 OF 2012
(Before Hon. Justice Mathews N. Nduma)
JOYCE N. SIMITU....................................CLAIMANT/RESPONDENT
VERSUS
STEPHEN O. MALLOWAH.............1ST RESPONDENT/APPLICANT
LAWRENCE M. BOKORO..............2ND RESPONDENT/APPLICANT
ANTI-COUNTERFEIT AGENCY....3RD RESPONDENT/APPLICANT
R U L I N G
1. Before court is an application dated 20th February, 2017 seeking the court to set aside its order to close the Claimant’s case, before he was cross-examined by counsel for the Respondent Mr. Munyua Ezekiel Njagi, of Rachier & Amollo Advocates and closure of defence case in default of attendance.
2. The court has carefully considered the application and the replying affidavit and is satisfied that, counsel for the Respondent developed abdominal complications on the eve of the hearing being the night of 15th January, 2017 and was rushed to hospital on 16th January, 2017 and admitted.
3. That in the circumstances he was unable not only to attend court as scheduled but could also not reach his office to arrange for alternative attendance by his collegues.
4. Accordingly, the court varies its orders of 16th January, 2017 and re-opens the case so that the advocate for the Respondent/applicant may cross-examine the Claimant and present the Respondent’s case. The directions to file submissions are stayed and to await closure of defence case.
5. Accordingly, the application succeeds. Case is re-opened and the Principal Judge to allocate the matter to any other Judge for continued hearing.
6. Costs in the cause.
Dated and Signed in Kisumu this 24th day of April, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 30th day of May, 2018
Maureen Onyango
Judge
Appearances
Rachier & Amollo Advocates for Respondents/Applicants
M/s. J. A. Guserwa & Co. Advocates for Claimant/Respondent
Anne Njung’e – Court Clerk