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Court of AppealPartially AllowedCivil Appeal No. 20 of 2016

Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR)

Court of Appeal of Kenya
9 February 2018
PWP. N. WakiMohamed Abdulahi WarsameM. WarsameASAsike-Makhandia
4,579 words in judgment
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The bottom line

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Kenya's Court of Appeal set aside a Kshs. 3.5 million default judgment, ruling a party shouldn't lose their case because their lawyer missed a hearing date.

What this practically means

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Executive summary

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The respondent sued the appellant in the Employment and Labour Relations Court claiming salary arrears and terminal benefits after his monthly salary was allegedly reduced without reason and eventually stopped. When counsel for the appellant failed to attend the cross-examination of the respondent on 30th September 2015, the trial court closed the respondent's case and the appellant's defence without cross-examination, and later rendered judgment in the respondent's favour for Kshs. 3,568,210/-. The appellant's applications to set aside the closure and the judgment were dismissed by Nzioka wa Makau, J., who found no mistake, inadvertence, accident or error, and noted the appellant's indolence. The Court of Appeal identified a single issue: whether the trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment. Guided by Mbogo v Shah and the principles governing appellate interference with discretionary decisions, the Court found the reason for counsel's non-attendance excusable, noted that the appellant moved to set aside the closure the very next day, that the respondent's counsel had consented to recalling the claimant, and that no prejudice to the respondent was shown. The Court also held that the trial court closed the case suo motu, without invitation, which was wrong, and that condemning a party unheard offended the right to a fair hearing under Article 50(1) and the rules of natural justice. Holding that the sins of counsel should not be visited upon a litigant, the Court allowed the appeal, set aside the ruling and order, allowed the appellant's notice of motion dated 6th November 2015 in terms of Prayer No. 4, and remitted the respondent's claim for hearing on merit before any other ELRC judge other than Nzioka wa Makau, J., with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment

Key legal issues

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01

Whether the trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment

Holding

The Judge misdirected himself; counsel's failure to attend cross-examination was an excusable mistake and the discretion ought to have been exercised in the appellant's favour.

Reasoning

The Court found counsel had two matters before two courts of equal status and overshot his time, a fact conceded by both parties. The appellant applied to set aside the closure the very next day, the respondent's counsel had consented in writing to recalling the claimant, and no prejudice to the respondent was alleged. Locking the appellant out of the seat of justice without hearing its defence offended the right to a fair hearing and the interest of justice warranted intervention.

p. 5
02

Whether the trial court acted properly in closing the respondent's case and the appellant's defence suo motu

Holding

The closure of the case was improper because the record did not show the appellant was called out and failed to respond, nor that the respondent applied for closure.

Reasoning

The Court examined the record and found no evidence that the appellant or its representative was called out in court without response, and no application by the respondent or his counsel for closure. The trial court therefore moved on its own motion, which the Court held was wrong.

p. 6
03

Whether the ex parte judgment breached the appellant's right to a fair hearing under Article 50(1) of the Constitution

Holding

The right to a fair trial is at the heart of judicial determination; condemning a party without an opportunity to be heard offends natural justice.

Reasoning

Relying on Onyango v Attorney General and Mbaki v Macharia, the Court reiterated that a decision in breach of the rules of natural justice is not cured by the fact that the same decision would otherwise have been reached, and that the right to be heard is a valued right. There was no reason grave enough to lock the appellant out of its defence and counterclaim.

p. 7

Legal principles established

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  • A court may only interfere with a trial judge's exercise of discretion where the judge misdirected himself on law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong.
  • The sins of counsel should not be visited upon an innocent litigant where the reason for counsel's default is excusable and no prejudice is caused to the other side.
  • A court should not close a party's case suo motu, without invitation by the opposing party.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and order dated 21st December, 2015 is set aside
  3. 3.The appellant's notice of motion dated 6th November, 2015 is allowed in terms of Prayer No. 4
  4. 4.The respondent's claim shall proceed to hearing on merit before any other judge of ELRC other than Nzioki wa Makau, J.
  5. 5.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
AS
majority
On appeal from
Employment and Labour Relations Court at Nairobi
E.L.R.C. No. 12535 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act against a decision of the Employment and Labour Relations Court

Relief refused

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Final determination of the appellant's defence and counterclaim on the merits by this Court

The Court restored the matter for hearing before another ELRC judge rather than determining the defence itself

p. 7

Costs

We make no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the appeal is allowed. The ruling and order dated 21 st December, 2015 is set aside.
p. 7Final orders - appeal allowed
In lieu thereof, we allow the appellant’s notice of motion dated 6th November, 2015 in terms of Prayer No. 4 with consequence that the respondent’s claim shall proceed to hearing on merit before any other judge of ELRC other than Nzioki wa Makau, J.
p. 7Final orders - remittal for hearing on merit
We make no order as to costs.
p. 7Final orders - costs
Clearly, this is a case where the sins of counsel should not have been visited upon a litigant.
p. 6Mistake of counsel
The court moved suo motu and without invitation which in our view was wrong.
p. 6Suo motu closure of case
…the discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice
p. 5Purpose of discretion to set aside ex parte judgment

Issues in the judgment

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minor

The judgment refers to the ruling under appeal as delivered on 31st December, 2015 in the coram heading but the final orders set aside 'the ruling and order dated 21 st December, 2015', an inconsistent date for the same decision.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR)", Case Analysis (2018). Civil Appeal No. 20 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/799/eng@2018-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.