[2021] KEELRC 1219 (KLR)
The court found that the respondent's failure to attend the hearing was due to a clerical error and subsequent forced isolation arising from Covid-19 exposure, circumstances which were corroborated by events known to the legal fraternity. The court recognized that the claimant had complied with all procedural...
Source-derived case information.
- Citation
- [2021] KEELRC 1219 (KLR)
- Parties
- Applicant: Mark Mbau Mathee; Respondent: RAI Radio Televisione Italiana
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2244 of 2015
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Proceedings
- Outcome
- application allowed; ex parte proceedings and orders set aside; hearing to proceed de novo; no order as to costs
- Judges
- J Rika
- Legal Topics
- Ex Parte Proceedings, Setting Aside Orders, Right to Be Heard, Covid 19 Impacts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Mbau Mathee
Applicant
RAI Radio Televisione Italiana
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Proceedings
Legal Issues
- 1 Whether the ex parte proceedings and consequential orders should be set aside to allow the respondent to be heard.
- 2 Whether the respondent's failure to attend court was excusable under the circumstances.
Ratio Decidendi
The court found that the respondent's failure to attend the hearing was due to a clerical error and subsequent forced isolation arising from Covid-19 exposure, circumstances which were corroborated by events known to the legal fraternity. The court recognized that the claimant had complied with all procedural requirements, but emphasized that the prevailing pandemic had created unusual challenges for legal practitioners. Given that the respondent's counsel had since passed away, the court held that it would be unjust and contrary to the principles of fairness and justice to deny the respondent an opportunity to be heard. Accordingly, the court exercised its discretion to set aside the ex...
Court Disposition
application allowed; ex parte proceedings and orders set aside; hearing to proceed de novo; no order as to costs
Orders
- Ex-parte proceedings and consequential orders of 26th November 2020 are set aside.
- Hearing to proceed de novo.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
CAUSE NO. 2244 OF 2015
BETWEEN
MARK MBAU MATHEE.......................................................CLAIMANT
VERSUS
RAI RADIO TELEVISIONE ITALIANA......................RESPONDENT
RULING
1. The Claim herein was heard and concluded on 26th November 2020, in the absence of the Respondent and its Counsel.
2. The Respondent has applied through Amended Notice of Motion dated 5th February 2021, to have the ex parteproceedings and consequential orders set aside, and the Respondent allowed to state its case.
3. The Application is supported by 2 Affidavits sworn by Counsel for the Respondent, Peter Muhoro Kimani.
4. Counsel explains that he and his client did not attend Court on 26th November 2021 due to a clerical error within Counsel’s chambers, whereof the Hearing Notice served by the Claimant was not brought to the attention of the Counsel.
5. Counsel learnt that the matter had proceeded ex parte, when he went back to his chambers on 29th January 2021 following a forced isolation, arising from contact with a close family member who had Covid-19.
6. The Claimant opposes the Application through his Replying Affidavit sworn on 23rd February 2021. He explains that the Respondent’s Counsel did not attend Court on 1st July 2020, when the hearing date was scheduled. He was served with the Hearing Notice. On the hearing date, the Court took a break and requested Claimant’s Counsel to call his counterpart. There was no response from the Respondent’s Counsel. The Claimant gave evidence, rested his case, and the Court gave orders on the filing of Submissions. The Claimant served his Submissions on 20th January 2021. The matter was mentioned on 21st January 2021 when again the Respondent did not attend Court. The Claimant urges the Court to reject the Application.
The Court Finds: -
7. Subsequent events happening after Counsel for the Respondent filed his Affidavits in support of the Application, suggest that there was a good reason why he failed to attend Court on the hearing date.
8. The events are common knowledge to the legal fraternity. They confirm the truthfulness of the Affidavits sworn by Counsel for the Respondent.
9. While the Court agrees that the Claimant has done everything required by the law to prosecute his Claim expeditiously, it is not lost on the Court that we are living in very unusual times, where discharge of routine professional and business obligations, has become severely restricted by the Covid-19 pandemic.
10. The unfortunate fact that Counsel for the Respondent is no longer with us, is sufficient reason, to set aside ex parte proceedings, and allow the Respondent an opportunity to reorganize its Response. It would be unjust and heartless not to allow the Application.
IT IS ORDERED: -
a. Ex-parte proceedings and consequential orders of 26th November 2020, are set aside.
b. Hearing to proceed de novo.
c. Suitable hearing date shall be assigned at the Registry.
d. No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, AT NAIROBI, THIS 22ND DAY OF JULY 2021.
JAMES RIKA
JUDGE