Automated Summary
Key Facts
The Respondent (PricewaterhouseCoopers Limited) applied to reopen an ex parte hearing that occurred on 7th October 2021, claiming their advocate missed court directions due to connectivity issues. The Claimant (Joyce Cheptoo Koech) opposed the application, arguing the Respondent failed to prove their connectivity problems and was attempting to delay proceedings. The court found the Respondent's mistake excusable and allowed the application to recall the Claimant for cross-examination and to reopen the case for the Respondent to present their defense. The court ordered thrownaway costs of Kshs. 30,000 to be paid by the Respondent.
Issues
- The court evaluated whether the Respondent's error in misinterpreting virtual/in-person hearing directions constituted an excusable mistake, ultimately ruling it was an excusable error that warranted reopening the case to ensure substantial justice.
- The court considered whether it should exercise its discretion to set aside a prior ex-parte hearing and permit the Respondent to present its defense, given their claim of a non-deliberate failure to attend due to a misapprehension of court directions.
Holdings
The court exercised its discretion to set aside the ex parte hearing, allowing the Respondent to cross-examine the Claimant and present its defense. The Respondent's mistake in attending online instead of in person was deemed excusable, and the case will be reopened for further proceedings as directed.
Remedies
- The respondent is ordered to pay Kshs. 30,000 in thrownaway costs to the claimant's advocate within 7 days.
- The court reopens the case to allow cross-examination of the claimant and the respondent to present their defense, following an excusable mistake by the respondent in attending the hearing.
Legal Principles
The court exercised its discretion to set aside an ex parte hearing based on an excusable mistake by the Respondent, citing the case of Patriotic Guards v David Kipchirchir Sambu. The decision emphasizes the importance of judicial review principles, particularly the Wednesbury principle, in determining whether to allow a re-hearing.
Precedent Name
- Peterlis Juma v. Shree Sai Industries Ltd
- Patriotic Guards v David Kipchirchir Sambu
Judge Name
Nzioki Wa Maka
Passage Text
- The thrownaway costs for the motion are Kshs. 30,000/- as the advocate for the Claimant and the Claimant are to be inconvenienced to prepare and travel for the hearing yet again. The Respondent is to pay these sums within 7 days.
- The issue before the court is the matter of the exercise of discretion to set aside hearing that took place ex parte. The Respondent/Applicant asserts that it is desirous of being heard and that its failure to attend Court was not deliberate but is excusable. It cites the case of Patriotic Guards v David Kipchirchir Sambu (supra) where the Court of Appeal held in circumstances similar to these that the court should set aside. I have considered the facts giving rise to the present motion and having found that the Respondent misapprehended the directions of the Court and instead of attending in person sought to be heard online. Granted that the resumption of in person hearings was at the initial stages the Respondent is guilty of an excusable mistake or error. As such the Court will exercise its discretion and allow for the recall of the Claimant and re-opening of the case to the extent that she can be cross examined on her testimony and the Respondant to give its defence at the dates the Court will give.