[2019] KEELRC 771 (KLR)
The court found that the explanation provided by the claimant's advocate for the late arrival to court was reasonable and not deliberate. The court further held that the claimant would be greatly prejudiced for no fault of his own if the dismissal was not set aside. Exercising its discretion, the court granted the...
Source-derived case information.
- Citation
- [2019] KEELRC 771 (KLR)
- Parties
- Claimant: Jacob Aluoch Rangi; Respondent: The Board of Management Luora Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 16 of 2018
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application granted; suit reinstated on condition of payment of wasted costs.
- Judges
- MN Nduma
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Exercise of Discretion, Wasted Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Aluoch Rangi
Claimant
The Board of Management Luora Secondary School
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside and the suit reinstated.
- 2 Whether the explanation for the claimant's advocate's absence constitutes sufficient cause to warrant reinstatement.
- 3 Whether the claimant should bear the costs occasioned by the adjournment.
Ratio Decidendi
The court found that the explanation provided by the claimant's advocate for the late arrival to court was reasonable and not deliberate. The court further held that the claimant would be greatly prejudiced for no fault of his own if the dismissal was not set aside. Exercising its discretion, the court granted the application to set aside the dismissal and reinstate the suit, on condition that the claimant pays wasted costs to the respondent's advocates for the hearing date that was lost due to non-attendance.
Court Disposition
Application granted; suit reinstated on condition of payment of wasted costs.
Orders
- The order dismissing the suit is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 16 OF 2018
(Before Hon. Justice Mathews N. Nduma)
JACOB ALUOCH RANGI....................................................................................CLAIMANT
VERSUS
THE BOARD OF MANAGEMENT LUORA SECONDARY SCHOOL....RESPONDENT
RULING
1. The suit was dismissed for non-attendance by the claimant without explanation. The hearing date on 6th February 2019 had been taken in court by the Advocates for the claimant on 8th May 2019 but the claimant and his advocate failed to turn up for the hearing. M/S Imbaya, Advocate for the respondent applied for the matter to be dismissed.
2. The claimant filed application dated 18th February 2019 on the even date seeking to have the order dismissing the suit be set aside and the suit be reinstated on the grounds that the claimant’s advocate arrived in court at 9. 35 am and found the matter had been called and dismissed. That the late arrival of the advocate was occasioned by a mechanical problem that developed in the Advocate’s vehicle on the way to court. The Advocate was unable to get an advocate to hold brief before he arrived. That the late arrival was not deliberate and seeks indulgence by the court.
3. The application is opposed by a replying affidavit of M/S Imbaya who states that there is no explanation why the claimant himself was not in court even if the Advocate had been delayed by a mechanical problem. That the claimant is not candid with the court and the court ought not to exercise discretion in their favour.
4. The court notes that this is a mater filed in the year 2018. The day it was dismissed was the first time it had been set for hearing. The explanation given by the advocate for the claimant for the late coming to court is reasonable
5. The court finds that the claimant shall be greatly prejudiced for no fault of his own if the dismissal is not set aside.
6. The application is granted provided the claimant pays wasted costs to the respondent advocates in respect of 6th February 2019 when the matter could not proceed to full hearing.
Ruling Dated, Signed and delivered this 16th day of September, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Nyauke for Claimant/Applicant
M/S Imbaya for Respondent
Chrispo – Court Clerk