[2019] KEELRC 1444 (KLR)
The court found that the Claimants and their advocate failed to provide a sufficient or excusable reason for their non-attendance at the hearing. The court emphasized that the errors cited—failure to diarise the date and lack of communication from the advocate holding brief—did not amount to mistake, inadvertence,...
Source-derived case information.
- Citation
- [2019] KEELRC 1444 (KLR)
- Parties
- Applicant: Alice Nkirote Muriungi & 4 Others; Respondent: Delmonte (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 145,146,147,148 & 149 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Discretion, Excusable Mistake, Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Nkirote Muriungi & 4 Others
Applicant
Delmonte (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the court should exercise its discretion to reinstate the dismissed suit for non-attendance.
- 2 Whether the reasons advanced by the Claimants constitute excusable mistake, inadvertence, or error justifying reinstatement.
Ratio Decidendi
The court found that the Claimants and their advocate failed to provide a sufficient or excusable reason for their non-attendance at the hearing. The court emphasized that the errors cited—failure to diarise the date and lack of communication from the advocate holding brief—did not amount to mistake, inadvertence, or excusable error. The court held that the discretion to reinstate a suit is not intended to assist parties who have not taken reasonable steps to ascertain hearing dates, especially when the record shows that instructions were given for someone to hold brief. The Claimants' conduct did not warrant the exercise of the court's discretionary powers, and as such, the application...
Court Disposition
application dismissed
Orders
- The application for reinstatement is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CAUSE NO. 145 OF 2018
CONSOLIDATED WITH CAUSE NO. 146, 147, 148 &149 OF 2018
ALICE NKIROTE MURIUNGI &4 OTHERS...........CLAIMANTS
VERSUS
DELMONTE (K) LIMITED........................................RESPONDENT
RULING
1. The Claimant seeks through the notice of motion dated 6th March 2019 but filed in court on 5th March 2019 to reinstate Cause No.s 145 of 2018, 146 of 2018, 147 of 2018 and 148 of 2019. The grounds on the face of the motion and in the affidavit of Grace Kiongera Advocate are that the suit was dismissed for non-attendance due to failure of her office to diarise the matter when the hearing notice was served and also because the advocate who held brief at the taking of the date did not inform her of the date fixed. The Respondent is of course opposed to grant of the orders sought and filed a replying affidavit sworn by Mabeya George Masese Advocate. He deponed that there were insufficient grounds to warrant reinstatement of the suit and that the Claimants were being untruthful.
2. In an application such as this one seeking reinstatement of the suit, a court is required to exercise its discretion in the grant or denial of the orders sought. Applying the principle that the court’s discretion to set aside is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice, the motion before me should be denied. It is inconceivable that the Claimants or their advocate could fail to ascertain the date fixed for hearing especially when instructions had been given for someone to hold their brief which was actually done as the record shows. The Claimants or the Advocate further had the option of calling the Employment & Labour Relations Court Registry to ascertain the date fixed. The Claimants are undeserving of the grant of the discretionary powers of the court as the series of errors they catalogue are neither mistake, inadvertence or excusable error. The application is dismissed albeit with no order as to costs.
It so ordered.
Dated and delivered at Nyeri this 12th day of June 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar