[2020] KEELRC 1748 (KLR)
The court found that although the claimant's advocate made an error in diarising the hearing date, the claimant failed to act promptly after discovering the mistake and did not provide a satisfactory explanation for the delay in seeking reinstatement. The court held that the circumstances did not justify setting...
Source-derived case information.
- Citation
- [2020] KEELRC 1748 (KLR)
- Parties
- Applicant: Hannah Nyambura Kimani; Respondent: Bliss Flora Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 13 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- M Mbarũ
- Legal Topics
- Reinstatement of Dismissed Suit, Non Attendance, Mistake of Advocate, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Nyambura Kimani
Applicant
Bliss Flora Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order issued for non-attendance and reinstate the suit.
- 2 Whether the explanation for non-attendance by the claimant's advocate constitutes sufficient cause to warrant reinstatement.
Ratio Decidendi
The court found that although the claimant's advocate made an error in diarising the hearing date, the claimant failed to act promptly after discovering the mistake and did not provide a satisfactory explanation for the delay in seeking reinstatement. The court held that the circumstances did not justify setting aside the dismissal order, as the claimant did not demonstrate sufficient cause or diligence in addressing the lapse. The application to reinstate the suit was therefore dismissed, and costs were awarded to the respondent.
Court Disposition
application dismissed
Orders
- The application dated 18th June, 2019 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
ATNAKURU
CAUSE NO.13 OF 2017
HANNAH NYAMBURA KIMANI .......CLAIMANT
VERSUS
BLISS FLORA LIMITED................RESPONDENT
RULING
The claimant filed application dated 18th June, 2019 seeking the court to set aside the orders issued on 6th March, 2019 and reinstate the suit which was dismissed for non-attendance.
The application is supported by the affidavit of Caleb Cheruiyot Koech and on the grounds that the suit was dismissed for non-attendance as the claimant’s advocate was not aware that the matter had been fixed for hearing on the 6th March, 2019 and the advocate attending on 1st October, 2019 inadvertently informed him of a different date. The claimant was then mistakenly advised that hearing was on 6th May, 2019 and thus did not attend and the same was dismissed.
Mr Koech avers in his affidavit that on 1st October, 2018 he instructed Sheila Tarus to hold his brief and take hearing directions who informed him that hearing was 6th may, 2019 and not 6th March, 2019 and thus failed to diarise the matter which was called and dismissed.
The respondent filed Grounds of Opposition and a Replying Affidavit of Lucy Wangui Kariuki and that the application by the respondent is in abuse of court process and should be dismissed. Ms Kariuki also avers that as the managing director of the respondent on 1st October, 2018 she instructed advocate to attend and secured a hearing date by consent for 6th March, 2019 but on the due date there was no attendance by the claimant or the advocate and the matter was dismissed for good cause. No good reason is given to justify the orders sought.
Both parties filed written submissions.
In taking account the application and the affidavits thereof and in reply together with the written submissions, where indeed the claimant advocate attending on 1st October, 2018 mistakenly shared a wrong date and in error or inadvertence that hearing was on 6th May, 2019, a Monday there is no explanation as to whether the claimant attended court and noted the error and thus moved expeditiously to arrest any prejudice.
The application herein is filed on 20th June, 2019.
Noting the seriousness of the matter and dismissal of the suit for non-attendance, even where the error in diarising the dates is to be taken into account, the delay in address the lapse as of 6th May, 2019 is not addressed.
Once a suit is dismissed for non-attendance and as correctly submitted by the claimant in the case of Belinda Murai and Others versus Amos Wainaina {1978] KLRnoting the mistake, nothing stopped the claimant from moving the court instantly. Also in the case of Transami (K) Limited versus Sokhi International (K) Limited [2007] eKLR,the court reading of this case as cited by the claimant, the foundation and matter at hand before the court is fundamentally different from the current case. Therein the plaintiff had taken time to give a detailed chronology of events leading to the non-attendance of the advocate in court. The plaintiff therein was keen to precede with his the case in the absence of the advocate.
In this regard, the court finds no good cause to allow the application.
Accordingly, application dated 18thJune, 2019 is hereby dismissed. Costs to the respondent.
Delivered at Nakuru this 23rd day of January, 2020.
M. MBARU
JUDGE
In the presence of: ………………………………. ………………………………