[2017] KEELRC 1923 (KLR)
The court found that there was insufficient evidence that the Claimant or his counsel had been served with a hearing notice for the date on which the suit was dismissed for want of prosecution. The record showed the Claimant had taken steps to prosecute the claim, and the absence of clear service of the hearing...
Source-derived case information.
- Citation
- [2017] KEELRC 1923 (KLR)
- Parties
- Claimant: David Njoroge Njenga; Respondent: Getrio Insurance Brokers Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 722 of 2013
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; suit reinstated
- Judges
- L Ndolo
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Njoroge Njenga
Claimant
Getrio Insurance Brokers Ltd
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the Claimant's suit for want of prosecution should be set aside.
- 2 Whether the Claimant was properly served with a hearing notice for the date the suit was dismissed.
- 3 Whether the interests of justice require reinstatement of the suit.
Ratio Decidendi
The court found that there was insufficient evidence that the Claimant or his counsel had been served with a hearing notice for the date on which the suit was dismissed for want of prosecution. The record showed the Claimant had taken steps to prosecute the claim, and the absence of clear service of the hearing notice lent credence to the Claimant's position. In the interests of justice, and given the Claimant's intention to prosecute the suit, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing on a priority basis.
Court Disposition
application allowed; dismissal order set aside; suit reinstated
Orders
- The order of 22nd April 2016 dismissing the Claimant's claim is set aside.
- The Claimant's claim is reinstated for hearing on a priority basis.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 722 OF 2013
DAVID NJOROGE NJENGA………………………………………….CLAIMANT
VS
GETRIO INSURANCE BROKERS LTD…………………………RESPONDENT
RULING
1. The Claimant’s application brought by Notice of Motion dated 6th July 2016 seeks to set aside the order made on 22nd April 2016 dismissing the Claimant’s suit.
2. The application which is supported by the affidavit of David Maina Nyamu, Advocate sworn on 6th July 2016 is based on the following grounds:
a) The suit was dismissed on 22nd April 2016, during the service week, for non-attendance of the parties and/or their Counsel;
b) Counsel for the Claimant was not served with any hearing notice and was therefore not aware of the matter being listed on that day;
c) The Claimant has an arguable case with a high chance of success;
d) That it would be fair and in the interest of justice to reinstate the suit for hearing and determination on merit.
3. In the supporting affidavit sworn by David Maina Nyamu, Advocate he depones that on 20th June 2016, he was notified by the Respondent’s Advocates that they had received a hearing notice from the Court on 17th May 2016.
4. Counsel further depones that prior to this, his firm had on 4th December 2015 invited the Respondent’s Advocates to attend the Registry on 11th December 2015, for the purpose of fixing a mutually convenient date.
5. On 11th December 2015, the Claimant’s Advocates detailed a process server by the name David Mulelesi Miluu to attend the Registry and fix the matter for hearing. Miluu later notified Counsel for the Claimant that the matter had been fixed for hearing on 19th July 2016. It was while preparing for the hearing that the Claimant’s Advocates received a letter from the Respondent’s Advocates notifying them of a hearing that might have taken place on 22nd April 2016.
6. The question for determination in this application is whether the Claimant has made out a case for setting aside of the order made on 22nd April 2016, dismissing the Claimant’s claim for want of prosecution.
7. From the court file, the following record of activity emerges:
a) On 9th September 2013, the Claimant’s Advocates served a hearing notice for 29th November 2013 on the Advocates for the Respondent;
b) On 10th September 2013, the Respondent’s Advocates wrote to the Claimant’s Advocates indicating that the date taken was not convenient.
By copy of this letter, the Registrar was asked to take out the matter;
c) On 23rd April 2015, the Claimant’s Advocates forwarded a draft statement of agreed issues to the Respondent’s Advocates.
8. From this record, it seems to me that the Claimant had the intention to prosecute his claim. Further, the Court could not tell the mode and date of service of the hearing notice issued by the Deputy Registrar on 22nd March 2016, lending credence to the averment by Counsel for the Claimant that the hearing notice was not served on him.
9. For the foregoing reasons I find that this a proper case for setting aside of the order of the Court issued on 22nd April 2016 dismissing the Claimant’s claim for want of prosecution.
10. The said order is therefore set aside and the Claimant’s claim reinstated for hearing on priority basis.
11. The costs of this application will be in the cause.
12. It is so ordered.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 27THDAY OF JANUARY 2017
LINNET NDOLO
JUDGE
Appearance:
Mr. Nyamu for the Claimant
No appearance for the Respondent