[2020] KEELRC 1665 (KLR)
The court found that the Respondent/Applicant failed to demonstrate sufficient grounds to warrant reinstatement of the dismissed application. The explanation provided for non-attendance, namely the mistaken belief regarding the hearing date, was not supported by evidence of how the mis-diarization occurred,...
Source-derived case information.
- Citation
- [2020] KEELRC 1665 (KLR)
- Parties
- Applicant: Charles Nderitu Gitonga; Respondent: Kirinyaga Construction (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 77 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Dismissed Motion
- Outcome
- application dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Mistake of Counsel, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nderitu Gitonga
Applicant
Kirinyaga Construction (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Dismissed Motion
Legal Issues
- 1 Whether the Respondent/Applicant established sufficient grounds to warrant reinstatement of the dismissed application.
- 2 Whether the mistake of counsel in diarizing the hearing date constitutes a valid reason for non-attendance.
Ratio Decidendi
The court found that the Respondent/Applicant failed to demonstrate sufficient grounds to warrant reinstatement of the dismissed application. The explanation provided for non-attendance, namely the mistaken belief regarding the hearing date, was not supported by evidence of how the mis-diarization occurred, especially since the date was clearly given by the court. The court held that the alleged mistake of counsel was not satisfactorily explained and that the Respondent/Applicant was not diligent in defending itself. Consequently, the application to reinstate the dismissed motion was found to be without merit and was dismissed with costs to the Claimant.
Court Disposition
application dismissed with costs
Orders
- The application dated 25th September 2019 and filed on 26th September 2019 is dismissed with costs to the Claimant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CAUSE NO. 77 OF 2015
CHARLES NDERITU GITONGA...........................................CLAIMANT
VERSUS
KIRINYAGA CONSTRUCTION (K) LIMITED..............RESPONDENT
RULING
1. The motion before me is the Respondent’s Notice of Motion application dated 25th September 2019 and filed on 26th September 2019 seeking to reinstate the application dated 17th June 2019 which was dismissed for non-attendance. The motion was supported by the Affidavit of Kiguru Ayub Muhuni sworn in support thereof. In the affidavit the Respondent’s Advocate averred that he was not present in Court on 25th September 2019 as he was under the mistaken belief that the application was scheduled for hearing on 26th September 2019. He deponed that he discovered on 25th September 2019 after completing his appearances at Milimani Law Courts in Nairobi he checked the online cause list where he discovered the matter had been listed for 25th September 2019 and he caused an Advocate based in Nyeri to peruse the court file and he indeed established that the matter had been in court on 25th September 2019 and dismissed for non-attendance of the Respondent/Applicant. The application was opposed by the Claimant who filed a Replying Affidavit through his Counsel. The parties also filed submissions to the application which was canvassed and a Ruling reserved for today.
2. The Respondent/Applicant submitted that the issue for determination was whether the Respondent/Applicant had established good grounds to warrant reinstatement of the dismissed application. The Respondent submitted that it was its humble view that it had satisfactorily explained the reasons for the non-attendance on 25th September 2019. The Respondent/Applicant asserted that Counsel mis-diarized the case for 26th September 2019 and it submitted that mistake of counsel should not be visited on the client who is entitled to access justice. The Respondent submitted that it had attached the affidavit of service by the process server who served an erroneous date of the hearing of the motion which was dismissed for non-attendance. The Respondent submitted that the mistake meets the test of reasonability and the motion should be reinstated for hearing. The Respondent relied on the cases of Kevin Omare Nyayiemi vPeter Marongo [2018] eKLRand Patrick Lumumba Wakhusama vEdward Ndungu &Another [2019] eKLRin support of its proposition.
3. The application is dated 25th September 2019 and was filed on 26th September 2019. The application was dated the same day the case was scheduled for hearing and was filed the very next day. The hearing notice the Respondent/Applicant asserts was served upon the Claimant’s Advocate indicated that the suit was coming up for hearing of the suit on 26th September 2019. The suit had by this time been heard and determined and the Respondent/Applicants application was what was coming up for hearing on 25th September 2019. Counsel for the Respondent/Applicant did not indicate how it was that he mis-diarized the date as the date was given by court as 25th September 2019 and the file was perused after the application to set aside was scheduled for hearing on 25th September 2019. No grounds were demonstrated to warrant the holding that there was a mistaken belief the application dated 17th July 2019 was coming up for hearing on 26th September 2019. There is absolutely no merit in the motion as the Respondent was not diligent in defending itself and the alleged mistake of Counsel has not been satisfactorily explained to warrant a reversal of the order of dismissal. The application dated 25th September 2019 and filed on 26th September 2019 is unmerited and is dismissed with costs to the Claimant.
It is so ordered.
Dated and delivered at Nyeri this 22nd day of January 2020
Nzioki wa Makau
JUDGE