Anne Kanai v Parliamentary Service Commission & another [2020] KEELRC 1072 (KLR)
The bottom line
#A Kenyan employment court reinstated a case dismissed over a lawyer's honest date mix-up, ruling clients shouldn't pay for innocent mistakes—though costs were awarded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order dismissing the claimant's suit on 20th November, 2019 for non-attendance should be set aside and the suit reinstated
- 2.Whether the claimant demonstrated good and reasonable cause for non-attendance, being an inadvertent error by counsel in recording the hearing date
- 3.Whether the respondent's Grounds of Opposition, filed without a replying affidavit, were procedurally adequate under Rule 16(9)
Key legal issues
#Setting aside of dismissal for non-attendance and reinstatement of suit
The dismissal order was set aside and the suit reinstated because the claimant's non-attendance resulted from an honest, inadvertent error by counsel in recording and communicating the hearing date, which error was also communicated to the respondent
The court reviewed the history of the matter and found the claimant had made efforts to have the matter heard. The error in diarising 20/12/2019 instead of 20/11/2019 was an honest human mistake that also misled the respondent, who served a hearing notice for the wrong date. Weighing the totality, the court preferred determination on the merits over penalising the client for counsel's inadvertence, but conditioned reinstatement on payment of the respondent's attendance costs.
Adequacy of Grounds of Opposition without a replying affidavit
Grounds of opposition filed without a replying affidavit are procedurally deficient because they deny the applicant a fair chance to interrogate facts
The court distinguished the position under Order 50 Rule 16(2) of the Civil Procedure Rules, holding that under Rule 16(9) of the ELRC (Procedure) Rules, 2016, grounds of opposition must be verified by an affidavit so that factual disputes are tested through affidavit evidence rather than bare grounds. The respondent's failure to file a replying affidavit left the factual assertions in its grounds unverified.
Legal principles established
#- A party responding to a Notice of Motion should file grounds of opposition verified by an affidavit so that matters of fact are addressed by affidavit evidence
- Where failure to attend court is without good basis the matter should stand dismissed, but where good and reasonable cause is shown the court should hear the parties on the merits
Court orders
#- 1.Application dated 12th February, 2020 allowed
- 2.Order issued on 20th November, 2019 set aside and the suit reinstated
- 3.Claimant to pay the respondent Ksh.10,000 in costs for attendance in the prosecution of the Notice of Motion before allocation of a hearing date
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#General costs of the application payable by the respondent
The claimant was to bear the respondent's costs of attendance due to the error in diarising and serving the hearing notice
Costs
Claimant to pay the respondent Ksh.10,000 in costs before allocation of a hearing date
Quotable passages
#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, application dated 12th February, 2020 is hereby allowed; the order issued on 20 th November, 2019 is hereby set aside and the suit reinstated save the claimant shall pay the respondent Ksh.10, 000 in costs.
The mistake was unintended and an honest human error and the client should not be penalised.
Where there is good and reasonable cause shown, then the court on such basis should hear parties on the merits.
To file Grounds of Opposition without the Replying Affidavit thus denies the applicant a fair chance to interrogate the facts addressed in such grounds.
Issues in the judgment
#The judgment inconsistently records the hearing date allocated on 10th July 2019, referring to both 20th November 2019 and 20th December 2019, including a typographical reference to '20 th number, 2019'
The respondent's Grounds of Opposition are recorded as asserting the claimant failed to attend court on 20th December 2019, while the dismissal order was made on 20th November 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Kanai v Parliamentary Service Commission & another [2020] KEELRC 1072 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1072/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.