[2018] KEELRC 1360 (KLR)
The court found that, in the absence of the original court file, it was not possible to conclusively determine the factual basis of the applicant's claims regarding service of the hearing notice and the circumstances of the dismissal. The court was not satisfied that the registry had made sufficient efforts to trace...
Source-derived case information.
- Citation
- [2018] KEELRC 1360 (KLR)
- Parties
- Applicant: Francis Gitau Kamau; Respondent: Factory Guards Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 173 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reconstruction of File and Setting Aside Dismissal
- Outcome
- interim directions issued; application for reconstruction and setting aside deferred
- Judges
- MSA Makhandia
- Legal Topics
- Reconstruction of Court File, Dismissal for Nonattendance, Setting Aside Orders, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Gitau Kamau
Applicant
Factory Guards Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reconstruction of File and Setting Aside Dismissal
Legal Issues
- 1 Whether the court file for Cause No. 35 of 2013 should be reconstructed to enable further proceedings.
- 2 Whether the dismissal of the applicant's case for nonattendance should be set aside due to lack of notification.
- 3 Whether sufficient cause has been shown to warrant hearing the case on its merits.
Ratio Decidendi
The court found that, in the absence of the original court file, it was not possible to conclusively determine the factual basis of the applicant's claims regarding service of the hearing notice and the circumstances of the dismissal. The court was not satisfied that the registry had made sufficient efforts to trace the file. Therefore, the Deputy Registrar was directed to make further efforts to locate the file and confirm whether hearing notices or notices to show cause were served, and to report back to the court. The application for immediate reconstruction or setting aside was not granted at this stage, pending the outcome of the registry's further search and report.
Court Disposition
interim directions issued; application for reconstruction and setting aside deferred
Orders
- The Deputy Registrar is directed to make further efforts to trace the original court file for Cause No. 35 of 2013.
- The Deputy Registrar shall confirm with appropriate registers whether hearing notice or notice to show cause were served.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
MISC APPLICATION NO. 173 OF 2017
FRANCIS GITAU KAMAU APPLICANT
v
FACTORY GUARDS LIMITED RESPONDENT
RULING
1. The applicant instituted legal proceedings against the Respondent in 2013 and the Cause was marked as Cause No. 35 of 2013, Francis Gitau Kamau v Factory Guards Ltd.
2. The Respondent filed a Defence (the date is not clear from the copy annexed to the application).
3. On 28 April 2015, the applicant filed an application seeking leave to amend the Memorandum of Claim. It was indicated in the application that the Cause was to come up for hearing on 3 June 2015.
4. It is not disclosed what happened to the application.
5. On 8 December 2017, the applicant moved Court seeking orders
1. THAT the Honourable Court do allow the reconstruction of Employment and Labour Relations Cause file Number 35 of 2013, FRANCIS GITAU KAMAU v FACTORY GUARDS LIMITED.
2. THAT the Honourable Court be pleased to ascertain whether a notice to show cause was heard on 7-4-2017 whereby the Claimant’s case was dismissed due to nonattendance by the Claimant and his advocate and set aside the said proceedings in the interest of justice.
3. THAT in the alternative to prayer 2 above, the Court do find that the applicant has shown sufficient cause why the case should not be dismissed and directions be given that CAUSE NUMBER 35 OF 2013 be heard on merits within the shortest period possible.
6. In support of the application, it was contended that though the Cause was dismissed, the applicant and his advocate were not notified that the Cause was coming up for hearing on 7 April 2017, and that the applicant only became aware of the dismissal of the Cause on 3 October 2017.
7. The application was served upon the Respondent and it filed a replying affidavit in which it was deposed that the Cause was dismissed on 7 April 2017, and that the application was compounded as it sought setting aside and reconstruction of the Court file, and that was improper.
8. The applicant admitted that the failure to attend Court on 7 April 2017 when the Cause was dismissed was due to inadvertence. At the same time he deposed that there was no notification that the Cause was coming up for hearing during the service week in 2017. The two explanations appear inconsistent.
9. Without the Court file, it would not be easy for the Court to determine whether the contentions by the applicant on service were factual.
10. The Court has seen on record a letter dated 15 March 2018 by the Deputy Registrar to the parties indicating that the original file could not be traced.
11. The Court is however not satisfied that the registry has made sufficient efforts to trace the file, and the Deputy Registrar should be given adequate time to trace the file considering that there is information that the file was dealt with during service week on 7 April 2017.
12. The Court therefore directs the Deputy Registrar to make further efforts to trace the file, confirm with appropriate registers whether hearing notice/show cause were served and report back to the Court on 24 October 2018.
Delivered, dated and signed in Nairobi on this 27th day of July 2018.
Radido Stephen
Judge
Appearances
George K. Mwaura & Associate Advocates for applicant
T.K. Kariba Mbabu & Co. Advocates for Respondent
Court Assistant Lindsey