[2016] KEELRC 1803 (KLR)
The court found that the applicant should not be locked out from seeking justice due to the unexplained absence of his counsel when the matter was called out. The interests of justice require that the applicant be given an opportunity to prosecute his application for leave to apply for an order of mandamus,...
Source-derived case information.
- Citation
- [2016] KEELRC 1803 (KLR)
- Parties
- Applicant: David Wanyonyi; Respondent: Hon. Attorney General; Respondent: Chief of Defence Forces; Respondent: Army Commander Kenya Army
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 3 of 2015
- Procedural Posture
- Judicial Review / Ruling on Application to Reinstate Dismissed Summons for Leave to Apply for Mandamus
- Outcome
- Application for reinstatement of dismissed summons allowed.
- Legal Topics
- Judicial Review, Mandamus, Reinstatement of Application, Public Service Employment, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wanyonyi
Applicant
Hon. Attorney General
Respondent
Chief of Defence Forces
Respondent
Army Commander Kenya Army
Respondent
Procedural Posture
Judicial Review / Ruling on Application to Reinstate Dismissed Summons for Leave to Apply for Mandamus
Legal Issues
- 1 Whether the applicant's summons for leave to apply for an order of mandamus, previously dismissed, should be reinstated for hearing.
- 2 Whether the interests of justice require the applicant to be allowed to prosecute his application for enforcement of a judgment against the respondents.
Ratio Decidendi
The court found that the applicant should not be locked out from seeking justice due to the unexplained absence of his counsel when the matter was called out. The interests of justice require that the applicant be given an opportunity to prosecute his application for leave to apply for an order of mandamus, especially as the underlying judgment had not been complied with by the respondents. The court exercised its discretion to reinstate the dismissed summons, emphasizing that substantive justice should prevail over procedural lapses where no evidence of abuse or intentional delay is shown.
Court Disposition
Application for reinstatement of dismissed summons allowed.
Orders
- The dismissed application for leave to apply for an order of mandamus is reinstated for hearing inter partes.
- Costs in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
JUDICIAL REVIEW NO. 3 OF 2015
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CAP 40, LAWS OF KENYA
AND
IN THE MATTER OF NAKURU INDUSTRIAL CASE NO. 401 OF 2013
BETWEEN
DAVID WANYONYI......................................APPLICANT
VERSUS
HON. ATTORNEY GENERAL..........................1st RESPONDENT
CHIEF OF DEFENCE FORCES......................2nd RESPONDENT
ARMY COMMANDER KENYA ARMY.........................3rd RESPONDENT
RULING
David Wanyonyi (applicant) filed a summons under certificate of urgency on 19 May 2015 seeking leave to apply for an order of mandamus compelling the Respondents to comply with the decree issued in Nakuru Cause No. 401 of 2013.
The summons was certified urgent with a direction that it be served for inter partes hearing on 15 June 2015.
Come 15 June 2015, when the summons was called for hearing, both Mr. Simiyu for the applicant and Mr. Kirui for the Respondents were present.
The Court then proceeded with going through the cause list but when the summons was later called, Mr. Simiyu had walked out with no explanation as to where he was going.
Mr. Kirui sought the summons to be taken out but the Court dismissed the summons. Immediately thereafter, the applicant filed an application through motion, the subject of this ruling, seeking that the Court do reinstate the dismissed summons.
The Respondents filed a replying affidavit opposing the motion and the arguments were taken on 6 November 2015.
A brief background is that Ongaya J pronounced a judgment on 17 October 2014 in which the Court ordered that the Respondents do re-engage the applicant into the service of the Kenya Defence Forces or in the alternative retire him with full pension/benefits.
It appears that the Respondents failed to comply with the terms of the judgment hence the judicial review application.
The Court has duly considered the affidavits in support and in opposition and submissions made and reached the conclusion that in the interest of justice and not to lock the applicant from the seat of justice, the dismissed application be reinstated for hearing inter partes.
Costs in the cause.
Delivered, dated and signed in Nakuru on this 22nd day of January 2016.
Radido Stephen
Judge
Appearances
For applicant Mr. Simiyu instructed by Simiyu & Co. Advocates
For Respondents Mr. Kirui, Litigation Counsel, Office of the Attorney General
Court Assistant Nixon