[2017] KEELRC 1928 (KLR)
The court found that the Claimant failed to provide sufficient and candid explanation for his and his advocate's non-attendance on the scheduled hearing date. The court noted that the cause list is published in advance and that the Claimant did not indicate whether he consulted it. The application was drafted and...
Source-derived case information.
- Citation
- [2017] KEELRC 1928 (KLR)
- Parties
- Applicant: Gilbert Wafula Kaika; Respondent: Farmers Choice Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 294 of 2014
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Setting Aside Orders, Court Discretion, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Wafula Kaika
Applicant
Farmers Choice Limited
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside the dismissal order for non-attendance due to an alleged mistake in diarising the hearing date.
- 2 Whether the mistake of an advocate in recording the hearing date constitutes sufficient cause to exercise the court's discretion to set aside the dismissal order.
Ratio Decidendi
The court found that the Claimant failed to provide sufficient and candid explanation for his and his advocate's non-attendance on the scheduled hearing date. The court noted that the cause list is published in advance and that the Claimant did not indicate whether he consulted it. The application was drafted and prosecuted in a casual manner, and the Claimant did not swear an affidavit to confirm his own misunderstanding of the date. Consequently, the court declined to exercise its discretion to set aside the dismissal order, emphasizing that such discretion is not automatic and requires full and frank disclosure of the circumstances leading to non-attendance.
Court Disposition
application dismissed
Orders
- The motion dated 26 October 2016 is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 294 OF 2014
GILBERT WAFULA KAIKA......................................CLAIMANT
VERSUS
FARMERS CHOICE LIMITED............................RESPONDENT
RULING
1. Gilbert Wafula Kaika (Claimant) alleges that Farmers Choice Limited (Respondent) unfairly terminated his employment through a letter dated 15 October 2013. He also contends that he was underpaid. For the breaches, the Claimant seeks a total of Kshs 612,678/-.
2. The Respondent on its part asserts that the termination of the Claimant’s employment was lawful and was after a disciplinary hearing, and that all terminal dues were paid and the Claimant discharged it.
3. On 18 December 2015, the Cause was fixed for hearing on 25 October 2016. The scheduling was in the presence of Ms. Moraa holding brief for Mr. Kirwa for the Claimant and Mr. Kipkoech holding brief for Mr. Murimi for the Respondent.
4. When the Cause was called out for hearing on 25 October 2016, the Claimant and his advocate were not present and Mr. Muchela for the Respondent successfully applied to have the Cause dismissed.
5. The Claimant now seeks that the order of dismissal of the Cause be set aside.
6. The reasons advanced by the Claimant for seeking the order are that there was a misdiarisation of the hearing date (26 October 2016 instead of 25 October 2016) and that the error was a genuine mistake.
7. The Respondent in opposing the application contends that the Claimant was not vigilant in the management of his case.
8. During oral submissions, the Claimant urged that the order sought was discretionary, while the Respondent submitted that the both the Claimant and advocate could not have been mistaken as to the hearing date.
9. The Respondent further submitted that the Claimant had not sworn any affidavit to suggest that he also understood the hearing was on 26 October 2016 as opposed to 25 October 2016.
10. This Court has time without number, in applications such as this seeking setting aside of dismissal orders, observed that the party seeking the exercise of the court’s discretion must make frank and full disclosure of the circumstances which led to the failure to attend court.
11. Such an application should not be made as a matter of course on the mistaken belief that because there are authorities to the effect that the mistakes of an advocate ought not to be visited upon a litigant party, the Court will accede to such an application.
12. The Claimant appears to have taken a casual approach in both the drafting of the application and during oral submissions.
13. Further, this Court’s cause list is published a week in advance both in the notice board and the website of the Kenya Law Reports.
14. The Claimant was eerily silent as to whether he consulted the weekly cause list for the material week.
15. In the event, the Court declines to exercise its discretion in favour of the Claimant and dismisses the motion dated 26 October 2016.
Delivered, dated and signed in Nakuru on this 20th day of January 2017.
Radido Stephen
Judge
Appearances
For Claimant Ms. Soita instructed by Mwakio, Kirwa & Co. Advocates
For Respondent Mr. Murimi instructed by Murimi, Ndumia, Mbago & Muchela Advocates
Court Assistants Nixon/Daisy