[2018] KEELRC 780 (KLR)
The Court found that the Claimant failed to provide sufficient reason for non-attendance on the scheduled hearing date. While the Claimant's advocate cited engagement in other court matters, the Court emphasized that the Claimant himself was also absent and no explanation was provided for his absence. The Court...
Source-derived case information.
- Citation
- [2018] KEELRC 780 (KLR)
- Parties
- Applicant: Josphat Gathiaka Kiarie; Respondent: Nakumatt Holdings Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1787 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Dismissal for Non Attendance, Setting Aside Orders, Court Discretion, Adjournment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Gathiaka Kiarie
Applicant
Nakumatt Holdings Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the Claimant provided sufficient reason for non-attendance on the hearing date.
Ratio Decidendi
The Court found that the Claimant failed to provide sufficient reason for non-attendance on the scheduled hearing date. While the Claimant's advocate cited engagement in other court matters, the Court emphasized that the Claimant himself was also absent and no explanation was provided for his absence. The Court further noted that matters before the Employment and Labour Relations Court take precedence over those in subordinate courts, and that the Claimant's advocate should have made arrangements to inform the Court of any conflicting engagements. The Court concluded that the Claimant did not meet the threshold for the Court to exercise its discretion to set aside the dismissal order.
Court Disposition
application dismissed
Orders
- The application to set aside the order dismissing the suit for non-attendance is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1787 OF 2014
JOSPHAT GATHIAKA KIARIE ............................................CLAIMANT
VERSUS
NAKUMATT HOLDIMGS LTD.........................................RESPONDENT
RULING
1. On 5 December 2017, the Claimant’s advocates on record appeared before the Deputy Registrar for purposes of fixing a hearing date.
2. The Deputy Registry scheduled the hearing for 10 May 2018, and the Claimant was directed to serve a hearing notice.
3. When the Cause was called out for hearing on the scheduled date, both the Claimant and Respondent were absent.
4. Even their advocates on record were not in Court and the Court dismissed the Cause.
5. On 15 May 2018 the Claimant filed an application seeking orders
1. THAT the order made by this Honourable Court on 10th May 2018 dismissing the suit for non-attendance and/or want of prosecution be set aside.
2. THAT costs of this application be in the cause.
6. Although served with the application, the Respondent did not file any formal response in opposition to the application.
7. The application was heard on 27 June 2018.
8. In seeking to set aside the order dismissing the Cause, the Claimant’s advocate indicated that the failure to attend Court on 10 May 2018 was due to inadvertent in that he was engaged in other matters, HCCC No. 843 of 2005, Lifecare International Ltd v Zeenat Meghji & 2 Ors and High Court Insolvency Cause No. 10 of 2017, In the matter of Nakumatt Holdings Ltd.
9. The Claimant’s advocate urged that it was in the interest of justice to have the Cause heard on the merits and that in any case, the Cause could not have proceeded by virtue of a ruling of the High Court on 22 January 2018 placing the Respondent under an Administrator.
10. The Court has considered the record and all material placed before it.
11. There has been no attempt to explain why the Claimant (as apart from the advocate) was not in Court when the Cause was coming up for hearing. Even if there was a need to adjourn the hearing, it was incumbent upon the Claimant to be in Court, for adjournments are granted upon the Court being provided with sufficient reasons.
12. One of the matters the Claimant’s advocate indicated he was attending to was before the Subordinate Court. That this Court takes precedence over the Subordinate Court need no reiterating.
13. In terms of hierarchy of the Courts, the Claimant should have made appropriate arrangements to have the Court informed about his engagements before the High Court as he was aware of the order of the suits in both the High Court and this Courts cause list.
14. In the view of this Court, the Claimant has not shown sufficient reason why the Court should exercise its discretion in his favour.
15. The application is dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 26th day of October 2018.
Radido Stephen
Judge
Appearances
For applicant Mr. Njoroge instructed by Philip Muoka & Co. Advocates
For Respondent Nyaberi & Co. Advocates
Court Assistant Stella