[2021] KEELRC 2185 (KLR)
The court found that the claimant's counsel, Mr. Momanyi, had not been served with the hearing notice for 7/10/2019, and the claimant himself had recorded the wrong hearing date. The respondents failed to disclose this fact when seeking dismissal. The court held that the absence was not deliberate or inexcusable,...
Source-derived case information.
- Citation
- [2021] KEELRC 2185 (KLR)
- Parties
- Applicant: Benedict Wechuli; Respondent: Navakholo Constituency Development Fund; Respondent: The National Government Constituencies Development Fund Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Judgment Date
- 11 February 2021
- Case Number
- Cause 163 of 2017
- Procedural Posture
- Employment Cause / Application for Review and Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal order allowed; suit reinstated.
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Hearing Notice
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedict Wechuli
Applicant
Navakholo Constituency Development Fund
Respondent
The National Government Constituencies Development Fund Board
Respondent
Procedural Posture
Employment Cause / Application for Review and Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was justified in the absence of proper service of the hearing notice to the claimant's counsel.
- 2 Whether the order dismissing the suit should be set aside and the suit reinstated.
Ratio Decidendi
The court found that the claimant's counsel, Mr. Momanyi, had not been served with the hearing notice for 7/10/2019, and the claimant himself had recorded the wrong hearing date. The respondents failed to disclose this fact when seeking dismissal. The court held that the absence was not deliberate or inexcusable, and that justice required the suit to be reinstated. The court emphasized the need to avoid undue technicalities and to ensure access to justice, as mandated by the Constitution. Accordingly, the order dismissing the suit was set aside and the suit reinstated for hearing on a priority basis.
Court Disposition
Application to set aside dismissal order allowed; suit reinstated.
Orders
- The order dismissing the suit for want of prosecution issued on 7/10/2019 is set aside.
- The suit is reinstated and to be fixed for hearing on a priority basis if not otherwise settled by the parties.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 163 OF 2017
BENEDICT WECHULI..........................................................................................CLAIMANT
VERSUS
NAVAKHOLO CONSTITUENCY DEVELOPMENT FUND................1ST RESPONDENT
THE NATIONAL GOVERNMENT CONSTITUENCIES
DEVELOPMENT FUND BOARD............................................................2ND RESPONDENT
JUDGMENT
1. On 7/10/2019, the Court upon application by Counsel for the respondent made the following Order:-
“The suit is dismissed for want of prosecution and absence without explanation. No orders as to costs”
2. The suit was filed by the claimant on 26/4/2017and an amended Claim was filed on 12/5/2017. The respondent filed a response to the statement of Claim on 4/7/2017 and an Amended Statement of Response on 14/9/2017.
3. An application to strike out the suit for lack of jurisdiction filed by the respondent was determined on 14/12/2017.
4. The suit was set for hearing on the merits on 10/4/2018. On that date both parties confirmed that they were negotiating settlement and they be given 30 days.
5. On 14/5/2018, the matter having not been settled was set for hearing On 14/2/2019. Mr. Ojulo appeared for the respondent and the claimant was in person. Claimant told the Court that his Advocate Mr. Momanyi was sick. The matter was allocated another hearing date on 7/10/2019. On the date Mr. Emukule appeared for 1st respondent and Mr. Otieno appeared for the 2nd respondent. Mr. Momanyi for the claimant and the claimant were absent without explanation.
6. The respondents applied to have the matter dismissed for want of Prosecution which order the Court granted.
7. The Court has considered the application dated 20/11/2019 for the Court to review the Order dismissing the suit for none attendance. The Court has considered also the replying affidavit by the respondents.
9. The Court is satisfied that Mr. Momanyi; Counsel for the claimant/respondent who had been stated to be sick, in the last attendance had not been served with the hearing notice for the 7/10/2019 when the suit was dismissed.
10. The respondent advocates did not disclose this fact to the Court in their submissions to have the suit dismissed. They only relied on the fact that the claimant who was present in the last appearance did not also attend Court on 7/10/2019.
11. The Court is satisfied by the explanation given by Mr. Momanyi for the claimant, that the claimant though present and unrepresented on 14/2/19 did not get the correct hearing date. That he had recorded the hearing date to be 17/10/2019 and not 7/10/2019. That indeed the claimant attended Court on 17/10/19 only to find the suit had been dismissed.
12. The Court finds that the application to set aside the Order of the Court issued on 7/10/2019 dismissing the suit has merit and reinstates the suit accordingly.
13. The matter to be fixed for hearing and heard on priority basis if not otherwise settled by the parties.
Costs in the cause.
Dated and delivered at Nairobi this 11th day of February, 2021.
MATHEWS N. NDUMA
JUDGE
ORDER
In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
MATHEWS N. NDUMA
JUDGE
Appearances
Mr. Momanyi for claimant/Applicant
Otieno and Amisi Advocates for the 2nd respondent.
Otieno, Yogo, Ojuro & Advocates