[2016] KEELRC 1469 (KLR)
The court found that the Respondent's Advocate, having obtained the hearing date ex parte, was under a duty to attend court on the scheduled date. The explanation that the Advocate was prosecuting another matter was insufficient, particularly as no effort was made to have a colleague hold his brief. The court...
Source-derived case information.
- Citation
- [2016] KEELRC 1469 (KLR)
- Parties
- Claimant: Elijah Ouma Otieno; Respondent: Bhachu Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 278 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Dismissed Application
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Reinstatement of Application, Advocate Mistake, Court Attendance, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Ouma Otieno
Claimant
Bhachu Industries Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Dismissed Application
Legal Issues
- 1 Whether the Respondent has shown sufficient grounds to warrant reinstatement of the application dismissed on 28th July 2015.
- 2 Whether the mistake of the Advocate in failing to attend court should be excused and not visited upon the Respondent.
Ratio Decidendi
The court found that the Respondent's Advocate, having obtained the hearing date ex parte, was under a duty to attend court on the scheduled date. The explanation that the Advocate was prosecuting another matter was insufficient, particularly as no effort was made to have a colleague hold his brief. The court emphasized that advocates are responsible for managing their diaries and ensuring representation in multiple matters. As no sufficient grounds were established for setting aside the orders dismissing the application, and considering that the Respondent still retained the right to be heard in the main claim, the application for reinstatement was dismissed.
Court Disposition
application dismissed
Orders
- The Respondent's application dated 28th September 2015 is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 278 OF 2014
ELIJAH OUMA OTIENO.........................................................................CLAIMANT
VS
BHACHU INDUSTRIES LIMITED...................................................RESPONDENT
RULING
1. This ruling relates to the Respondent's application brought by Notice of Motion dated 28th September and filed in Court on 29th September 2015. The application which is supported by the affidavit of Bryan A. Moturi sworn on 28th September 2015 is based on the following grounds:
That on 28th July, the Advocate on record for the Respondent went to court at 9. 00 am but the court (Abuodha J) had not begun. He therefore went to another court (Nduma J) to prosecute ELRC No 1535 of 2013;
That after he finished prosecuting ELRC No 1535 of 2013, the Advocate went before Abuodha J only to find that the application had been dismissed;
That the application has merit and ought to be heard;
That the mistake of the Advocate should not be visited on the Respondent.
2. In reply, Mr. Agina for the Claimant pointed out that the Respondent had not told the Court the prejudice it would suffer if the application dated 7th July 2015 is not reinstated. In addition, no reason was given as to why Counsel failed to get a colleague to hold his brief when the application came up for hearing on 28th July 2015.
3. I have looked at the court record and note that the hearing date of 28th July 2015 was obtained by Counsel for the Respondent when he appeared before the Duty Judge under certificate of urgency on 9th July 2015. Having taken the date ex parte, Counsel for the Respondent was under a duty to appear before the Court on 28th July 2015. It is not enough to simply say that he was prosecuting another matter.
4. An Advocate who fixes multiple matters on the same day has an obligation to manage their diary. There was no reason why Counsel did not get a colleague to hold his brief. The Court therefore finds that no sufficient grounds have been laid for setting aside the orders issued by Abuodha J on 28th July 2015. In arriving at this decision, I have taken into account that the Respondent retains his right to be heard in the main claim which is still pending in court.
5. The result is that the Respondent's application dated 28th September 2015 is dismissed with costs being in the cause.
6. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS
26TH DAY OF FEBRUARY 2016
LINNET NDOLO
JUDGE
Appearance:
Mr. Agina for the Claimant
Mr. Moturi for the Respondent