[2018] KEELRC 672 (KLR)
The court found that the cause was part heard and that the union had generally been ready to proceed with the hearing. The absence of the applicant's advocate was explained as being due to engagement in other courts, and the respondent did not oppose the application. In the circumstances, the court exercised its...
Source-derived case information.
- Citation
- [2018] KEELRC 672 (KLR)
- Parties
- Applicant: Aviation & Allied Workers Union (K); Respondent: Kenya Airways Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 551 of 2012
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Claim
- Outcome
- Application allowed; claim reinstated.
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Claim, Court Discretion, Non Attendance, Adjournment Requests
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aviation & Allied Workers Union (K)
Applicant
Kenya Airways Limited
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Claim
Legal Issues
- 1 Whether the order dismissing the claim for non-attendance should be set aside.
- 2 Whether the claim should be reinstated for hearing and determination.
Ratio Decidendi
The court found that the cause was part heard and that the union had generally been ready to proceed with the hearing. The absence of the applicant's advocate was explained as being due to engagement in other courts, and the respondent did not oppose the application. In the circumstances, the court exercised its discretion to set aside the dismissal order and reinstate the claim, finding that justice would be better served by allowing the matter to proceed to full hearing and determination.
Court Disposition
Application allowed; claim reinstated.
Orders
- The order dismissing the claim is set aside.
- The claim is reinstated for full hearing and determination.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 551 OF 2012
AVIATION & ALLIED WORKERS UNION (K)...............CLAIMANT
v
KENYA AIRWAYS LIMITED...........................................RESPONDENT
RULING
1. On 25 July 2018, the Claimant and his advocate were not in Court when its case came up for hearing, and the Court after going through the record ordered the Cause dismissed.
2. During the appearance, the Respondent was represented by Mr. Weru holding brief for Mr. Obura who was reportedly ill.
3. On 9 August 2018 the Aviation & Allied Workers Union (K),(the Union) moved Court seeking orders
a. THAT the order of the Honourable Justice Radido made on the 25th day of July, 2018 dismissing the Claim filed on 30th March 2012 herein together with all other consequential orders be set aside.
b. THATthe Claim filed herein dated 30th March 2012 be reinstated for full hearing and final determination.
c. THAT the costs of this application be provided for.
4. The grounds in support of the application were that the advocate having conduct of the Cause and an associate instructed to hold brief were before other Courts (disclosed); that the advocate on record for the Respondent had earlier informed the Union’s advocate that he would be seeking an adjournment; that the Union has always been willing and ready to prosecute its case and that the Court had unfettered discretion.
5. The Respondent did not oppose the application.
6. The Court has looked at the record and established that the Cause is part heard and that the Union has mostly been ready to proceed with the hearing.
7. In the event the application is allowed with no order as to costs.
8. A mutually convenient hearing date to be scheduled hereinafter considering the age of the suit.
Delivered, dated and signed in Nairobi on this 9th day of November 2018.
Radido Stephen
Judge
Appearances
For Union Okweh Achiando & Co. Advocates
For Respondent Obura Mbeche & Co. Advocates
Court Assistant Lindsey