[2023] KEELRC 165 (KLR)
The court held that while compliance with court orders is mandatory, a 24-hour delay in filing pleadings and documents does not warrant the extreme sanction of striking out those documents. The court reasoned that such a sanction would undo the parties' consent to allow late filing and would convert the scheduled...
Source-derived case information.
- Citation
- [2023] KEELRC 165 (KLR)
- Parties
- Applicant: Abigail Awuor Yallo; Respondent: Faulu Microfinance Bank Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E266 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Respondent's Witness Statement and Documents for Late Filing
- Outcome
- Application declined; respondent to pay costs to claimant; hearing to proceed as scheduled.
- Judges
- J Rika
- Legal Topics
- Late Filing of Documents, Procedural Non Compliance, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abigail Awuor Yallo
Applicant
Faulu Microfinance Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Respondent's Witness Statement and Documents for Late Filing
Legal Issues
- 1 Whether the respondent's witness statement and documents filed 24 hours late should be struck out from the record.
- 2 Whether a short delay in compliance with a procedural order justifies the draconian remedy of striking out pleadings.
Ratio Decidendi
The court held that while compliance with court orders is mandatory, a 24-hour delay in filing pleadings and documents does not warrant the extreme sanction of striking out those documents. The court reasoned that such a sanction would undo the parties' consent to allow late filing and would convert the scheduled full hearing into a formal proof hearing, contrary to the parties' intentions. The court exercised its discretion to decline the application to strike out, instead ordering the respondent to pay costs to the claimant as a proportionate response to the procedural breach.
Court Disposition
Application declined; respondent to pay costs to claimant; hearing to proceed as scheduled.
Orders
- The application filed by the claimant dated August 1, 2022 is declined.
- The respondent shall pay costs of Kshs 4,000 to the claimant before February 1, 2023.
Full Case Text
Judgment text and source record
27 paragraphs
Yallo v Faulu Microfinance Bank Limited (Cause E266 of 2022) [2023] KEELRC 165 (KLR) (31 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 165 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E266 of 2022
J Rika, J
January 31, 2023
Between
Abigail Awuor Yallo
Claimant
and
Faulu Microfinance Bank Limited
Respondent
Ruling
1. The respondent was late in filing its statement of response, witness statements and documents.
2. Parties filed consent order on June 29, 2022, allowing the respondent to comply, within 7 days of the order.
3. The claim was mentioned on July 29, 2022, when the respondent confirmed filing of its statement of response, but not the witness statements and documents.
4. It applied and was allowed to file these by end of the day on July 29, 2022.
5. There was no compliance until a day later, on August 1, 2022.
6. This prompted the claimant to file an application, on the same date, August 1, 2022, asking the court to strike out the witness statement and documents filed by the respondent on August 1, 2022.
7. The claimant was granted interim orders on August 3, 2022, to the effect that the witness statement and documents filed by the respondent, shall not form part of the record pending hearing of the application inter partes.
8. Parties agreed to have this application considered and determined on the strength of their submissions.
The Court Finds: - 9. Whereas orders of the court, including procedural orders, must be honoured, a delay of 24 hours on filing of pleadings and documents, should not attract the draconian order of striking out those pleadings and documents.
10. Striking out would take the parties back to where they were, before they consented on June 29, 2022, to have the respondent file its pleadings and documents out of time.
11. It is noted that on July 29, 2022, the parties scheduled full hearing for February 1, 2023. Striking out would convert the full hearing into a formal proof hearing, which was not the intention of the parties, when they agreed to have the respondent file its pleadings and documents late.
It Is Ordered: -a.The application filed by the claimant dated August 1, 2022 is declined.b.Respondent shall however pay costs of Kshs 4,000 to the claimant, before February 1, 2023. c.Hearing to proceed as scheduled.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND COVID-19 JUDICIARY GUIDELINES, THIS 31ST DAY OF JANUARY 2023. JAMES RIKAJUDGE