[2018] KEELRC 2252 (KLR)
The court found that the Claimant's counsel had adequately explained the failure to attend court on 2nd October 2017 as an inadvertent error in recording the mention date. The court was satisfied that the absence was not due to indolence but a genuine mistake, as evidenced by the diary extract and the prompt filing...
Source-derived case information.
- Citation
- [2018] KEELRC 2252 (KLR)
- Parties
- Claimant: Dominic Mutisya Sammy; Respondent: Tahir Sheikh Said Transporters Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 203 of 2017
- Procedural Posture
- Employment Cause / Ruling on Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- application for reinstatement allowed
- Judges
- J Rika
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Court Discretion, Procedural Inadvertence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Mutisya Sammy
Claimant
Tahir Sheikh Said Transporters Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the Claimant's suit should be reinstated after dismissal for non-attendance.
- 2 Whether the failure to attend court was excusable due to counsel's inadvertence in recording the mention date.
- 3 Whether the Respondent's lack of response affects the exercise of the court's discretion.
Ratio Decidendi
The court found that the Claimant's counsel had adequately explained the failure to attend court on 2nd October 2017 as an inadvertent error in recording the mention date. The court was satisfied that the absence was not due to indolence but a genuine mistake, as evidenced by the diary extract and the prompt filing of the application for reinstatement. The court also noted that the Respondent had not filed any response to the claim, undermining its argument that litigation must come to an end. Exercising its discretion, the court allowed the application for reinstatement, ordered the Respondent to file its response within 14 days, and directed that the Claimant could proceed to formal...
Court Disposition
application for reinstatement allowed
Orders
- Claimant’s Application dated 2nd November 2017 is allowed.
- The Respondent shall file and serve its Statement of Response, Witness Statements and necessary Documents, within 14 days of this Ruling.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 203 OF 2017
BETWEEN
DOMINIC MUTISYA SAMMY.............................................................CLAIMANT
VERSUS
TAHIR SHEIKH SAID TRANSPORTERS LTD.............................RESPONDENT
Rika J.
Court Assistant: Benjamin Kombe
Oyugi Kitoo & Company Advocates for the Claimant
Muturi Gakuo & Kibara Advocates for the Respondent
_____________________________________________
RULING
1. The Claimant filed his Statement of Claim on 14th March 2017. He prays for terminal benefits and compensation for unfair termination against the Respondent, his former Employer, calculated at Kshs. 876,666.
2. The Respondent failed to file its Statement of Response, despite being granted extension of time by the Court on various occasions to comply. The record indicates the Respondent was granted ‘last opportunity’ and ‘the very last opportunity’ to file Response.
3. The dispute was scheduled for mention on 2nd October 2017. It was to be confirmed whether the Respondent had filed Response. The Court would set the matter down for formal proof, in the absence of a Statement of Response.
4. Unfortunately, neither Party attended Court or 2nd October 2017. The Claim was dismissed for non-attendance, with no order on the costs.
5. The Claimant filed an Application on 6th November 2017, asking the Court to reinstate his Claim.
6. The Application is supported by an Affidavit sworn by Claimant’s Learned Counsel Ms. Mary Kitoo, on 2nd November 2017.
7. She explains she entered the wrong date in her diary, when the matter was last mentioned prior to its dismissal on 22nd September 2017. Instead of 2nd October 2017, she noted mention would be on 2nd November 2017. She realized this error on 2nd November 2017, when on attending Court, she found out the matter was mentioned and dismissed on 2nd October 2017. She has exhibited an extract of her official diary, showing the wrong entry.
8. The Respondent is opposed to the Application. Its Grounds of Opposition were filed on 13th December 2017. The Application is a gross abuse of the Court Process. The Claimant was indolent. Litigation must come to an end. The Claimant was not vigilant in prosecution of his case. The Court should not exercise its discretion in his favour.
The Court Finds
9. The Claimant’s Counsel has demonstrated failure to attend Court on 2nd October 2017 was through inadvertence in recording of date, in Counsel’s diary. The date entered was 2nd November 2017, instead of 2nd October 2017. An extract of Counsel’s diary adequately shows there was an error in recoding of mention date.
10. The Respondent appears not to have filed any Statement of Response, as of 2nd October 2017. It is ingenious of the Respondent to submit that litigation must come to an end, while the Respondent has filed nothing in Response to the Claim.
11. The Claimant has adequately explained his absence on 2nd October 2017. The record shows him to be keen on prosecuting the Claim. He had prior to 2nd October 2017, attended Court, when required to do so, without fail. He filed his Application to reinstate the Claim, on the very day he realized there was an error in diarizing mention date.
IT IS ORDERED:-
a. Claimant’s Application dated 2nd November 2017 is allowed.
b. The Respondent shall file and serve its Statement of Response, Witness Statements and necessary Documents, within 14 days of this Ruling.
c. In default the Claimant to set down the Claim for formal proof.
d. Costs in the cause.
Dated and delivered at Mombasa this 20th day of March 2018.
James Rika
Judge