[2018] KEELRC 437 (KLR)
The court found that the Claimant's absence was not deliberate but resulted from the advocate's failure to diarise the hearing date. Additionally, the court considered that the parties had been attempting an out-of-court settlement, which had since collapsed. In the interests of justice and fair hearing, the court...
Source-derived case information.
- Citation
- [2018] KEELRC 437 (KLR)
- Parties
- Applicant: Dona Musimbi Elisha; Respondent: Madam Anna
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1677 of 2018
- Procedural Posture
- Cause / Ruling on Application to Set Aside Dismissal
- Outcome
- Application to set aside dismissal allowed; cause reinstated.
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Cause, Review of Dismissal Orders, Non Attendance by Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dona Musimbi Elisha
Applicant
Madam Anna
Respondent
Procedural Posture
Cause / Ruling on Application to Set Aside Dismissal
Legal Issues
- 1 Whether the dismissal of the Claimant's cause for non-attendance should be reviewed and set aside.
- 2 Whether the Claimant should be granted another opportunity to prosecute the claim.
Ratio Decidendi
The court found that the Claimant's absence was not deliberate but resulted from the advocate's failure to diarise the hearing date. Additionally, the court considered that the parties had been attempting an out-of-court settlement, which had since collapsed. In the interests of justice and fair hearing, the court exercised its discretion to set aside the dismissal and reinstate the cause, granting the Claimant one last opportunity to prosecute the claim.
Court Disposition
Application to set aside dismissal allowed; cause reinstated.
Orders
- The dismissal of the claim on 19 April 2018 is reviewed and set aside.
- The claim is reinstated and to be set down for hearing forthwith.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT AT NAIROBI
CAUSE NO. 1677 OF 2014
DONA MUSIMBI ELISHA.........................CLAIMANT
v
MADAM ANNA...............................RESPONDENT
RULING
1. On 19 April 2018, the Cause herein came up for hearing and because the Claimant and her advocate were absent, the Respondent’s advocate applied to have it dismissed with costs, an application which the Court granted.
2. The dismissal prompted the Claimant to move Court on 13 July 2018 seeking orders
1. The dismissal of the Claim on 19. 4.2018 be reviewed and set aside.
2. The Claim be set down for hearing forthwith.
3. Costs be in the cause.
3. Although served with the application on 3 August 2018, the Respondent did not file any response in opposition, and the Court declined to grant it more time to file a response when the application came up for hearing on 23 October 2018.
4. The grounds advanced in support of the application were that the failure to attend Court for the hearing was not intentional as the advocate on record failed to diarise the hearing date, and that the parties were attempting out of court settlement but the negotiations had collapsed.
5. The Court has considered the grounds in support of the application, the supporting affidavit and oral submissions as well as the record and come to the conclusion that the Claimant be given one last chance.
6. The application dated 24 May 2018 is thus allowed.
Delivered, dated and signed in Nairobi on this 7th day of December 2018.
Radido Stephen
Judge
Appearances
For applicant Mr. Khalwale instructed by Khalwale & Co. Advocates
For Respondent A.I. Onyango & Co. Advocates
Court Assistant Lindsey