[2019] KEELRC 894 (KLR)
The court held that the application to set aside the dismissal and reinstate the cause could not stand because the firm of Were Lukoko & Co. Advocates, which filed the application, was not properly on record for the claimant. There was no notice of change of advocate or appointment filed, nor leave of court granted...
Source-derived case information.
- Citation
- [2019] KEELRC 894 (KLR)
- Parties
- Claimant: James Murage Nguru; Respondent: Board of Management, Highway Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 615 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Cause
- Outcome
- application struck out
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Cause, Misdiarisation of Hearing Date, Change of Advocate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Murage Nguru
Claimant
Board of Management, Highway Secondary School
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Cause
Legal Issues
- 1 Whether the application to set aside the dismissal and reinstate the cause was properly before the court.
- 2 Whether the firm of Were Lukoko & Co. Advocates was properly on record for the claimant.
- 3 Whether the misdiarisation of the hearing date constituted sufficient cause to set aside the dismissal.
Ratio Decidendi
The court held that the application to set aside the dismissal and reinstate the cause could not stand because the firm of Were Lukoko & Co. Advocates, which filed the application, was not properly on record for the claimant. There was no notice of change of advocate or appointment filed, nor leave of court granted for the advocate to come on record. This procedural defect was fundamental and rendered the application incompetent, regardless of the merits of the underlying claim or the explanation for non-attendance. Consequently, the application was struck out with costs to the respondent.
Court Disposition
application struck out
Orders
- The application filed on 3 April 2019 is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 615 OF 2017
JAMES MURAGE NGURU.........................................................................................CLAIMANT
VERSUS
BOARD OF MANAGEMENT, HIGHWAY SECONDARY SCHOOL..............RESPONDENT
RULING
1. The Cause herein was dismissed on 4 February 2019 because the Claimant and his advocate did not attend the hearing. It is the Claimant who had caused the fixing of the hearing date.
2. On 3 April 2019, the Claimant filed a motion seeking an order setting aside the dismissal order, and reinstating the Cause to hearing.
3. The grounds in support of the application were that the hearing date had been misdiarised; that the Claimant had a meritorious cause of action and that the Respondent would not be prejudiced.
4. To demonstrate the misdiarisation, the Claimant exhibited a copy of hearing notice served upon the Respondent and which was acknowledged. It showed a hearing date of 4 March 2019.
5. The Principal of the Respondent school filed a replying affidavit in opposition to the application. It was contended therein that the advocate who filed the application was not properly on record, and that the Claimant was not vigilant having filed the application 2 months after the dismissal of the Cause.
6. The parties also filed submissions and the Court has considered the same.
7. The Statement of Claim was filed on behalf of the Claimant by the firm of Masika & Koross, Advocates on 30 March 2017.
8. . There is no Notice of Change of Advocate or Notice of Appointment on record to signify that the Claimant at any point in time instructed the firm of Were Lukoko & Co. Advocates to come on record or act for him.
9. In the view of the Court, the issue of representation or legal capacity of the firm of Were Lukoko & Co. Advocates to purport to act for the Claimant is so fundamental that without formal notification of coming on record or grant of leave to come on record, the application under consideration cannot stand.
10. The application filed in Court on 3 April 2019 is struck out with costs to the Respondent.
Delivered, dated and signed in Nairobi on this 20th day of September 2019.
Radido Stephen
Judge
Appearances
For Claimant Lukoko Were & Co. Advocates
For Respondent Christine Oyugi, Senior Litigation Counsel, Office of the Attorney General
Court Assistant Lindsey