[2019] KEELRC 1848 (KLR)
The court found that while the facts presented by the Claimant regarding the confusion over courtrooms were not disputed, the Claimant failed to explain the three-month delay in filing the application for reinstatement after becoming aware of the dismissal. Additionally, there was no disclosure as to whether the...
Source-derived case information.
- Citation
- [2019] KEELRC 1848 (KLR)
- Parties
- Applicant: Aggrey Shileka Indongole; Respondent: Steel Makers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 260 of 2015
- Procedural Posture
- Review Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Suit, Review of Court Orders, Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Shileka Indongole
Applicant
Steel Makers Limited
Respondent
Procedural Posture
Review Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be reviewed or set aside.
- 2 Whether the suit should be reinstated for hearing on its merits.
- 3 Whether the delay in filing the application for reinstatement was justified.
Ratio Decidendi
The court found that while the facts presented by the Claimant regarding the confusion over courtrooms were not disputed, the Claimant failed to explain the three-month delay in filing the application for reinstatement after becoming aware of the dismissal. Additionally, there was no disclosure as to whether the Claimant had been advised to attend court on the hearing date, nor any evidence of readiness to prosecute the case. The unexplained delay and lack of disclosure led the court to decline to exercise its discretion in favour of the Claimant. Consequently, the application to set aside the dismissal and reinstate the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal and reinstate the suit is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 260 OF 2015
AGGREY SHILEKA INDONGOLE............................................CLAIMANT
VERSUS
STEEL MAKERS LIMITED...................................................RESPONDENT
RULING
1. On 28 February 2018, the Claimant’s advocate representative appeared before the Deputy Registrar and caused the Cause to be scheduled for hearing on 15 October 2018.
2. When the Cause was called out for hearing on the scheduled date, the Claimant and his advocate were absent. The Respondent’s advocate was in Court.
3. In consideration of the absence of the Claimant and his advocate, the Court ordered the Cause dismissed with costs to the Respondent.
4. On 25 January 2019, the Claimant filed a motion seeking orders
1. THAT the order of dismissal of this suit with costs for want of prosecution issued on the 15th October 2018 be reviewed and or be set aside.
2. THAT the suit be reinstated for hearing based on its merit.
3. THAT costs of this application be in the cause.
5. The Claimant urged the application on 25 February 2019.
6. The grounds on which the application was anchored were that the Cause though fixed for hearing on 15 October 2018, was listed in the online cause list before Hon Ngumi, the Deputy Registrar in Court 402 and not this Court and therefore the advocate decided to go before the subordinate Court to hold brief for another advocate.
7. According to the advocate, when he later inquired he was informed that the Cause had been placed before Court sitting in Room 103, and when he reached the Court, he found the Cause had already been dismissed.
8. The facts as presented by the Claimant are not disputed.
9. However, the Claimant did not explain why it took about 3 months to file the application having become aware of the dismissal of the Cause on the day it had been scheduled for hearing on 15 October 2018.
10. There has also been no disclosure as to whether the Claimant had been advised to attend Court for the hearing on 15 October 2018 to demonstrate that he was ready to prosecute his case on the scheduled hearing date.
11. In the view of the Court, the unexplained delay in filing the application, and failure to disclose the whereabouts of the Claimant on the material day swerve the sword of justice against exercise of the Court’s discretion in favour of the Claimant.
12. The application is declined, and is dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 29th day of March 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Njenga instructed by Njogu & Associates
For Respondent did not participate
Court Assistant Mercy