[2015] KEELRC 1122 (KLR)
The Court found that both parties' advocates were absent on the hearing date, and that the Claimant had provided a reasonable explanation for his counsel's absence, supported by medical evidence. The Court emphasized the duty of advocates to attend court or make alternative arrangements. In the interest of justice...
Source-derived case information.
- Citation
- [2015] KEELRC 1122 (KLR)
- Parties
- Applicant: John Nganga Mangae; Respondent: Kenya Commercial Bank Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 127 of 2014
- Procedural Posture
- Review Application / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application for review granted; Cause reinstated for hearing on the merits.
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Cause, Non Attendance, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nganga Mangae
Applicant
Kenya Commercial Bank Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the order dismissing the Cause for non-attendance should be reviewed and set aside.
- 2 Whether the Cause should be reinstated for hearing on the merits.
Ratio Decidendi
The Court found that both parties' advocates were absent on the hearing date, and that the Claimant had provided a reasonable explanation for his counsel's absence, supported by medical evidence. The Court emphasized the duty of advocates to attend court or make alternative arrangements. In the interest of justice and to allow the matter to be determined on its merits, the Court exercised its discretion to review and set aside the dismissal order, reinstating the Cause for hearing. Each party was ordered to bear its own costs for the application.
Court Disposition
Application for review granted; Cause reinstated for hearing on the merits.
Orders
- Order dismissing the Cause for non-attendance is reviewed and set aside.
- The Cause is reinstated for hearing and determination on the merits.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAKURU
CAUSE NO. 127 OF 2014
JOHN NGANGA MANGAE....................................CLAIMANT
v
KENYA COMMERCIAL BANK LTD....................RESPONDENT
RULING
1. On 18 December 2014, the Court, in the presence of Mr. Kairo for the Claimant and Mr. Mbati for the Respondent, fixed the Cause for hearing on 11 March 2015.
2. When the Cause was called out for hearing on 11 March 2015, none of the parties’ counsels were in Court and the Court dismissed the Cause for non-attendance.
3. The dismissal prompted the Claimant to file an application on 13 March 2015 seeking a review/setting aside of the order dismissing the Cause.
4. Among the grounds/reasons tendered were that the Claimant was in Court on 11 March 2015, but due to his unfamiliarity with Court procedures he did not inform the Court that his Advocate was ready to proceed. It was also contended that Mr. Kairo who had the brief was unwell (various medical reports were annexed to the affidavits).
5. Mrs. Njoroge who prosecuted the Claimant’s application indicated that the Claimant was ready to pay thrown away costs.
6. The Respondent opposed the application and filed a replying affidavit sworn on 18 March 2015. According to the Respondent, the orders sought were unmerited. The Respondent also faulted the Claimant’s counsel for not alerting its counsel of his illness.
7. The Court has considered the application and affidavits in support and opposition and the submissions and has come to the view that the order dismissing the Cause be reviewed and the Cause be reinstated to be heard and determined on the merits.
8. The Court has come to that view because even the Respondent’s counsel who has opposed the application was not present in Court on 11 March 2015. It is each and every advocate’s duty as an officer of the Court to be present in Court whether it is for a mention or hearing or make suitable alternative arrangements to be represented.
9. The Court therefore grants order 3 of the Motion dated 12 March 2015.
10. Each party to bear own costs of the motion.
Delivered, dated and signed in Nakuru on this 15th day of May 2015.
Radido Stephen
Judge
Appearances
For Claimant Mrs. Njoroge instructed by Nancy Njoroge & Co. Advocates
For Respondent Mr. Mbati instructed by Mburu Maina & Co. Advocates
Court Assistant Nixon Raiback