[2020] KEELRC 1065 (KLR)
The court found that the claimant had not demonstrated diligence in prosecuting the case and that the explanation provided for non-attendance was unsatisfactory, particularly as the assistant who was present in court did not swear an affidavit and did not request any advocate to hold brief. However, the court...
Source-derived case information.
- Citation
- [2020] KEELRC 1065 (KLR)
- Parties
- Applicant: Collins Mango Egesa; Respondent: Superior Homes (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1286 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed on terms
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Exercise of Discretion, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Collins Mango Egesa
Applicant
Superior Homes (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should exercise its discretion to set aside the dismissal of the application and reinstate the suit.
- 2 Whether the claimant demonstrated sufficient diligence and reasonable cause for non-attendance at the hearing.
Ratio Decidendi
The court found that the claimant had not demonstrated diligence in prosecuting the case and that the explanation provided for non-attendance was unsatisfactory, particularly as the assistant who was present in court did not swear an affidavit and did not request any advocate to hold brief. However, the court reluctantly exercised its discretion to allow the application for reinstatement, subject to the claimant paying the respondent's thrown away costs within ten days, failing which the application would stand dismissed. The decision was based on balancing the interests of justice and the claimant's right to be heard against the respondent's right to finality and efficient administration...
Court Disposition
application allowed on terms
Orders
- The claimant to pay the respondent thrown away/wasted costs of Kshs 10,000 within 10 days.
- In default of payment, the application will stand dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1286 OF 2014
COLLINS MANGO EGESA.............................................................CLAIMANT
VERSUS
SUPERIOR HOMES (K) LIMITED..........................................RESPONDENT
RULING
1. On 15 October 2018, the Court dismissed the Cause because Collins Mango Egesa (Claimant) and Superior Homes (K) Ltd (Respondent) and/or their advocates were not in Court when the Cause was called out for hearing.
2. A year later, on 9 July 2019, the Claimant filed an application under a certificate of urgency seeking an order reinstating the suit. The Court directed that the application be served upon the Respondent and a hearing date be taken in the registry.
3. On 5 August 2019, the Claimant’s advocate caused the application to be fixed for hearing on 26 September 2019.
4. However, on 26 September 2019, the Deputy Registrar rescheduled the hearing of the application to 6 November 2019. The Claimant was directed to serve a hearing notice.
5. When the application was called on the scheduled date, the Claimant and/or his advocate were not in Court. The Respondent’s advocate who was present applied to have the application dismissed, a request the Court acceded to.
6. On 23 January 2020, the Claimant filed another motion under a certificate of urgency seeking an order setting aside the dismissal of the initial application and restoring it for hearing.
7. The Respondent’s advocate on record filed a replying affidavit in opposition to the motion on 10 February 2020 and the Court heard arguments on 3 March 2020.
8. In seeking the Court’s exercise of discretion to reinstate the dismissed application, the Claimant explained that the advocate was before another Court and had instructed an Assistant to request an advocate to hold brief but the Assistant came to Court and found the application had been called out and dismissed; that the Court had not followed the cause-list order and that the failure of the advocate to attend Court was an innocent omission.
9. The Respondent in opposing the application countered that the Claimant had a history of disinterest in prosecuting his case before the Court and therefore the Court should not exercise its discretion in his favour.
10. The Claimant’s application requires an exercise of the Court’s discretion.
11. The Court has looked at the record. The Claimant has not exhibited (did not) diligence in having his case concluded.
12. The explanation now given that the Court did not follow the cause list is a red herring. The Assistant who was in Court did not swear any affidavit. Paragraph 6 of the Claimant’s advocate affidavit suggest the Assistant was in Court all through. It is not clear why the Assistant did not request any of the advocates in Courts to hold brief.
13. Reluctantly, the Court will allow the application on terms, that is, the Claimant to pay the Respondent thrown away/wasted costs of Kshs 10,000/- within 10 days, in default, the application will stand dismissed.
Delivered through video/email, dated and signed in Nairobi on this 22nd day of May 2020.
Radido Stephen
Judge
Appearances
For applicant Ms. Mukala instructed by P.K. Mukala, Advocate
For Respondent Mr. Kinuthia instructed by Nyachoti & Co. Advocates
Court Assistant Judy Maina