Joswa Kenyatta v Civicon Limited [2020] eKLR Case Summary

Court
Employment and Labour Relations Court at Nairobi
Category
Civil
Judge(s)
Onesmus N. Makau
Judgment Date
October 08, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Joswa Kenyatta v Civicon Limited [2020] eKLR case, detailing key legal principles and the court's ruling. A must-read summary for legal professionals and students alike.

Case Brief: Joswa Kenyatta v Civicon Limited [2020] eKLR

1. Case Information:
- Name of the Case: Joswa Kenyatta v. Civicon Limited
- Case Number: Cause No. 1485 of 2016
- Court: Employment and Labour Relations Court, Nairobi
- Date Delivered: October 8, 2020
- Category of Law: Civil
- Judge(s): Onesmus N. Makau
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include whether the applicant (Civicon Limited) has established sufficient cause to set aside the ex parte proceedings of June 18, 2019, and whether the applicant has a defense that raises triable issues warranting a rehearing of the case.

3. Facts of the Case:
The claimant, Joswa Kenyatta, initiated the case against Civicon Limited in 2016. Civicon Limited entered an appearance in March 2017 and filed a response in June 2017. However, on June 18, 2019, the hearing proceeded ex parte because the lawyer assigned to the case failed to update the hearing date in the diary. Civicon Limited only learned of the ex parte proceedings when served with a mention notice for July 2, 2019. The applicant argued that it had not been able to present its witnesses or cross-examine the claimant, which would lead to significant prejudice if the judgment were delivered without a proper hearing.

4. Procedural History:
Civicon Limited filed a Notice of Motion on July 2, 2019, seeking to stay the proceedings and set aside the ex parte judgment. The claimant opposed the motion, arguing that the applicant had not established sufficient cause for its absence and highlighting the delay in filing its witness statements. The application was subsequently canvassed through written submissions.

5. Analysis:
- Rules: The court considered the discretion to set aside ex parte proceedings as provided under Order 10 Rule 11 of the Civil Procedure Rules 2010, which allows for such actions to ensure justice is served. The court also referenced the principles established in previous cases regarding sufficient cause and the necessity of a triable defense.

- Case Law: The court cited several precedents, including:
- *Mbogo v. Shah* [1968] 1 EA 93, which emphasizes the need to avoid injustice caused by mistakes.
- *Patel v. East Africa Cargo Handling Services Ltd* (1974) EA 75, which discusses the necessity of a defense raising triable issues.
- *CMC Holdings Limited v. James Mumo Nzioki* [2004] eKLR, which reinforces the need to assess both the reasons for absence and the existence of a reasonable defense.

- Application: The court found that the applicant's failure to attend was due to a genuine error by its lawyer rather than negligence. It concluded that Civicon Limited had demonstrated sufficient cause for the court to exercise its discretion to set aside the ex parte judgment. The defense raised triable issues regarding the claimant's dismissal, suggesting that the case warranted a full hearing.

6. Conclusion:
The court ruled in favor of Civicon Limited, allowing the application to set aside the ex parte proceedings. The court ordered that the hearing be reopened, enabling Civicon Limited to cross-examine the claimant and present its defense. Additionally, it ordered Civicon Limited to pay thrown-away costs to the claimant.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The court's decision to allow the reopening of the case underscores the importance of ensuring that parties have the opportunity to present their cases fully. The ruling highlights the court's commitment to justice and fairness, particularly in cases where procedural errors occur due to the actions of legal representatives. The requirement for thrown-away costs also reflects a balance between the interests of both parties.

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