[2019] KEELRC 873 (KLR)
The court found that the Claimant's failure to comply with previous directions was due to the notice being served on the previous advocates, and the current advocate was only informed of the notice shortly before the hearing. Since the Respondent did not oppose the application and the facts were not controverted,...
Source-derived case information.
- Citation
- [2019] KEELRC 873 (KLR)
- Parties
- Claimant: Eric Mwau David; Respondent: The Trustees and Registered Trustees Scott Christian University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1215 of 2015
- Procedural Posture
- Employment Cause / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application for reinstatement allowed with conditions.
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Mistake of Advocate, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Mwau David
Claimant
The Trustees and Registered Trustees Scott Christian University
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the mistake of an advocate in failing to respond to a notice to show cause should be visited upon the litigant.
Ratio Decidendi
The court found that the Claimant's failure to comply with previous directions was due to the notice being served on the previous advocates, and the current advocate was only informed of the notice shortly before the hearing. Since the Respondent did not oppose the application and the facts were not controverted, the court exercised its discretion to reinstate the suit, subject to the condition that the Claimant files and serves an Amended Statement of Claim by 25 September 2019. Failure to comply would result in the suit standing dismissed without further reference to the court. The court emphasized that the mistake of an advocate should not be visited upon the litigant in the...
Court Disposition
Application for reinstatement allowed with conditions.
Orders
- The suit is reinstated on condition that the Claimant files and serves an Amended Statement of Claim on or before 25 September 2019.
- In default of compliance, the Cause will stand dismissed as previously ordered without further reference to the court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1215 OF 2015
ERIC MWAU DAVID.................................................................CLAIMANT
VERSUS
THE TRUSTEES AND REGISTERED TRUSTEES
SCOTT CHRISTIAN UNIVERSITY...................................RESPONDENT
RULING
1. On 2 July 2018, the Court gave directions during pre-trial session which included the filing of an Amended Statement of Claim by the Claimant, after his application.
2. The Claimant did not file an Amended Statement of Claim.
3. On 27 March 2019, the Court directed that a Notice to Show Cause why the suit should not be dismissed be issued with a return date of 4 April 2019.
4. When the Cause was called out on 4 April 2019, the Claimant’s advocate sought for more time to file and serve an Amended Memorandum of Claim. No reasons were given why the directions/orders of 2 July 2018 had not been complied with.
5. Equally, there was no affidavit in response to the Notice to Show Cause.
6. The Court subsequently dismissed the Cause.
7. On 2 May 2019, the Claimant filed a motion seeking an order reinstating the dismissed suit on the grounds that the Notice to Show Cause was served upon the previous advocates on record; that the current advocate on record was only informed on 3 April 2019 about the Notice to Show Cause and therefore did not have the opportunity to prepare an affidavit and that the mistake of an advocate should not be visited upon a litigant.
8. Despite service, the Respondent did not file any response to the application.
9. The facts presented not being controverted, and the motion not being opposed, the Court will allow the application on condition that
(i) An Amended Statement of Claim is filed and served on or before 25 September 2019.
(ii) In default, the Cause will stand dismissed as earlier ordered without any further reference to the Court.
10. No order as to costs.
Delivered, dated and signed in Nairobi on this 20th day of September 2019.
Radido Stephen
Judge
Appearances
For Claimant Ms. Makori instructed by Mogeni & Co. Advocates
For Respondent A. Masika & Co. Advocates
Court Assistant Lindsey