[2018] KEELRC 773 (KLR)
The court found that the claimant failed to provide a satisfactory and bona fide explanation for non-attendance on the scheduled hearing date. The assertion that a clerk made a wrong diary entry was unsupported by affidavit evidence, and the record showed that the hearing date was taken in the presence of an...
Source-derived case information.
- Citation
- [2018] KEELRC 773 (KLR)
- Parties
- Claimant: John Muchui Mung’athia; Respondent: Shengli Engineering Construction (Group) Co Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 994 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Exercise of Discretion, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Muchui Mung’athia
Claimant
Shengli Engineering Construction (Group) Co Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order made on 16 April 2018 for non-attendance and reinstate the suit.
- 2 Whether the reasons advanced by the claimant for non-attendance are sufficient to warrant reinstatement of the suit.
Ratio Decidendi
The court found that the claimant failed to provide a satisfactory and bona fide explanation for non-attendance on the scheduled hearing date. The assertion that a clerk made a wrong diary entry was unsupported by affidavit evidence, and the record showed that the hearing date was taken in the presence of an advocate. There was no evidence that a hearing notice for the alleged incorrect date was served on the respondent. The court concluded that the reasons advanced lacked credibility and that the claimant was not deserving of the court's discretionary intervention to set aside the dismissal. Accordingly, the application to reinstate the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal order and reinstate the suit is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 994 OF 2014
JOHN MUCHUI MUNG’ATHIA............................................ CLAIMANT
v
SHENGLI ENGINEERING CONSTRUCTION
(GROUP) CO LTD............................................................... RESPONDENT
RULING
1. On 29 January 2018, the Deputy Registrar in the presence of the Claimant’s advocate fixed the Cause for hearing on 16 April 2018. The Claimant was directed to serve a hearing notice.
2. When the Cause was called out for hearing on the scheduled date, none of the parties (and advocates were in Court) and the Court dismissed the Cause.
3. On 20 April 2018, the Claimant filed an application seeking orders
1. THAT the Honourable Court be pleased to set aside its order of 16th April 2018 dismissing this case for non attendance and reinstate the suit for hearing on the merits.
2. THAT this Honourable Court be pleased to grant any other order suitable in the circumstances.
3. That the costs of this application be provided for.
4. Although the application was served upon the Respondent, it did not file any response and the Court allowed the hearing to proceed on 3 July 2018.
5. The reasons given by the Claimant for failing to attend Court were that the Clerk who took the hearing date made an entry in the diary under the wrong name and that this Cause was entered in the diary as coming up for hearing on 17 April 2018; that the Claimant was innocent and should not suffer prejudice and that the Court had the power to set aside the dismissal order.
6. The record indicates that the hearing date was taken in the presence of Mr. Mwango holding brief for Mr. Onindo for the Claimant.
7. The Claimant did not disclose whether Mr. Mwango was a Clerk or an Advocate. The Court can presume that he is an advocate, and therefore the assertion that an unnamed Clerk made a wrong entry in the diary does not appear satisfactory. There is no affidavit from the advocate.
8. And if indeed the Clerk had entered the hearing date as 17 April 2018, there was no explanation why no hearing notice for this latter day was not served upon the Respondent.
9. The failure to demonstrate that a hearing notice for 17 April 2018 as opposed to 16 April 2018 was served leads the Court to the view that the reason advanced by the Claimant lacks bona fides.
10. A similar notice or communication should have gone to the Claimant.
11. The Court notes from the record that a Notice to Show Causewhy the suit should not been dismissed had been issued on 20 September 2017.
12. When the Notice came up for hearing, Mr. Onindo informed the Court that the Claimant had debriefed the firm and taken away the file in May 2017.
13. The Court then directed that a formal application to cease from acting be filed but despite filing the application and being directed twice to serve the application, there is nothing on record to suggest it was served.
14. On 18 December 2017, Mr. Onindo informed the Court that he had agreed with the Claimant to continue representing him.
15. The Court, in consideration of the above comes to the conclusion that the Claimant is not deserving of its positive exercise of its discretionary power.
16. The application is dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 2nd day of November 2018.
Radido Stephen
Judge
Appearances
For Claimant Onindo Onindo & Associates
Respondent did not enter appearance
Court Assistant Lindsey