[2015] KEELRC 173 (KLR)
The court found that although the respondent's counsel failed to diarize the hearing date, the respondent acted diligently in seeking to set aside the ex parte hearing. The court emphasized that justice is better served by hearing matters on their merits rather than on technicalities or omissions. Given the brief...
Source-derived case information.
- Citation
- [2015] KEELRC 173 (KLR)
- Parties
- Claimant: Robert Ongeri; Respondent: Ramboo Colourcane
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 858 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Hearing
- Outcome
- Application to set aside ex parte hearing allowed; suit to recommence afresh; respondent to pay claimant's costs.
- Legal Topics
- Ex Parte Hearing, Setting Aside Orders, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Ongeri
Claimant
Ramboo Colourcane
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Hearing
Legal Issues
- 1 Whether the ex parte hearing conducted on 22nd June 2015 should be set aside.
- 2 Whether the respondent's failure to attend court due to counsel's omission justifies setting aside the proceedings.
- 3 Whether the matter should be heard afresh on its merits.
Ratio Decidendi
The court found that although the respondent's counsel failed to diarize the hearing date, the respondent acted diligently in seeking to set aside the ex parte hearing. The court emphasized that justice is better served by hearing matters on their merits rather than on technicalities or omissions. Given the brief nature of the claimant's evidence and the respondent's prompt application, the court exercised its discretion to set aside the ex parte proceedings and ordered that the suit recommence afresh. The respondent was ordered to pay the claimant's costs for the aborted hearing.
Court Disposition
Application to set aside ex parte hearing allowed; suit to recommence afresh; respondent to pay claimant's costs.
Orders
- The ex parte hearing of 22nd June 2015 is set aside.
- The suit shall recommence afresh on a date to be fixed at the registry.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 858 OF 2014
ROBERT ONGERI………..…………………………………………CLAIMANT
VERSUS
RAMBOO COLOURCANE.……………………………………RESPONDENT
RULING
1. The respondent in this matter seeks that the exparte hearing which took place on 22nd June, 2015 be set aside and that the proceeding do commence afresh. According to the respondent’s counsel, failure to attend Court was caused by failure to diarize the hearing date. Counsel has made the now common place excuse that such omission by Counsel should not be visited on his client. Whereas failure to diarize a hearing date is carelessness on part of Counsel and his Court Clerk, a denial of a hearing is a serious order which should be made in exceptional cases. This matter proceeded ex parte on 22nd June, 2015 and a judgment reserved for 1st July 2015. On 1st July, Counsel for the respondent informally asked me to defer the judgment as they intended to have the exparte hearing set aside. I asked Counsel to make a formal application for me to appreciate its merit. This prompted the present application. From the foregoing it cannot be disputed that the respondent has acted with diligence to have the ex parte hearing set aside.
2. Considering that the evidence by the claimant was very brief and taking into account the fact that a hearing on merit is more effective in dispute settlement than a determination on technicality or omission, this Court will give the applicant the benefit of doubt and order that the suit recommences afresh on a date to be fixed at the registry.
3. The applicant shall meet the claimant’s costs.
4. It is so ordered.
Dated at Nairobi this 6th day of November 2015
Abuodha J. N.
Judge
Delivered this 6th day of November 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge