[2018] KEELRC 1999 (KLR)
The application to set aside the dismissal and reinstate the suit was incompetent because the advocate who filed the application did not obtain the consent of the previous advocate or leave of the court as required by procedural rules. On the merits, the court found that the failure of the previous advocate to...
Source-derived case information.
- Citation
- [2018] KEELRC 1999 (KLR)
- Parties
- Applicant: Anderson Makaya; Respondent: Premier Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 473 of 2015
- Procedural Posture
- Reinstatement Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Suit, Advocate Negligence, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anderson Makaya
Applicant
Premier Industries Limited
Respondent
Procedural Posture
Reinstatement Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the application to set aside the dismissal order and reinstate the suit was competent.
- 2 Whether the mistakes of an advocate can be grounds for reinstatement of a dismissed suit.
- 3 Whether the applicant suffered irreparable loss justifying reinstatement.
Ratio Decidendi
The application to set aside the dismissal and reinstate the suit was incompetent because the advocate who filed the application did not obtain the consent of the previous advocate or leave of the court as required by procedural rules. On the merits, the court found that the failure of the previous advocate to attend court for hearing without any explanation constituted professional negligence rather than a mere mistake. The court held that the Claimant could pursue remedies against the negligent advocate, and there was no basis to reinstate the suit. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application dated 26 February 2018 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR FRELATIONS COURT AT NAIROBI
CAUSE NO. 473 OF 2015
ANDERSON MAKAYA...........................................CLAIMANT
v
PREMIER INDUSTRIES LIMITED...............RESPONDENT
RULING
1. On 10 July 2017, the Claimant caused the Registry to schedule the Cause for hearing on 8 February 2018.
2. When the Cause was called out for hearing on the scheduled date, the Claimant and his advocates on record Gakoi Maina & Co. Advocates were absent.
3. The Court consequently dismissed the Cause.
4. On 28 February 2018, the Claimant through the firm of Mwaniki Njuguna & Co. Advocates moved the Court seeking orders
1. THAT the law firm of MWANIKI NJUGUNA & CO. ADVOCATESbe granted leave to come on record on behalf of the Claimant/Applicant.
2. THAT the Order of the Honourable Court delivered on 8th February, 2018 by the Honourable Justice Radido dismissing the suit filed herein on 25th March, 2015 be set aside and/or varied.
3. THAT the suit filed herein on 25th March, 2015 be reinstated.
4. THAT the costs of the Application be provided for.
5. When the application came up for hearing on 14 March 2018, the Claimant indicated that he was ready to proceed.
6. The Respondent however sought an adjournment and leave to file a replying affidavit in opposition to the application.
7. The Claimant opposed the request by the Respondent on the ground that the application had been served on 28 February 2018.
8. The Court declined the request by the Respondent on the ground that it had had sufficient time to file responses to the application (about 2 weeks).
9. The Claimant addressed the Court while the Respondent did not present any arguments.
10. The reasons advanced by the Claimant in seeking the orders set out above were that the instant application had been presented without inordinate delay, that the mistakes of an advocate should not be visited upon a client, that the advocate then on record had not been diligent, that he stood to suffer irreparable loss and that Court should not have undue regard to technicalities.
11. The Court has considered the arguments presented by the Claimant and come to the conclusion that the application is not only incompetent but unmerited.
12. The incompetence arises because the advocate who has presented the application did not secure the consent of the advocate who was on record at the time the Cause was dismissed.
13. On the merits, it is the view of the Court that the failure of an advocate to attend Court for hearing without explanations being tendered as to the failure is not a mistake but professional negligence and recklessness bordering on negligence.
14. It is telling that no explanation has been offered at all as to why the advocate who fixed the Cause for hearing did not attend Court.
15. The proposition therefore that the Claimant stands to suffer irreparable loss has no foundation as he can pursue an appropriate cause against the advocate.
16. The Court declines to accept the invitation by the Claimant and orders that the application dated 26 February 2018 be dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 19th day of March 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Genga instructed by Mwangi Njuguna & Co. Advocates
For Respondent Akoto & Akoto Advocates
Court Assistant Lindsey