[2018] KEELRC 1882 (KLR)
The court found that the applicant should not be punished for the mistake of counsel, who was absent when the matter was called due to attending another court. Exercising judicial discretion, the court held that the interests of justice required setting aside the dismissal order and reinstating the application for...
Source-derived case information.
- Citation
- [2018] KEELRC 1882 (KLR)
- Parties
- Applicant: Julius Njagi Mbui; Respondent: Kenya Nut Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2134 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Dismissed Motion
- Outcome
- application allowed
- Judges
- HS Wasilwa
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Njagi Mbui
Applicant
Kenya Nut Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Dismissed Motion
Legal Issues
- 1 Whether the order dismissing the applicant's Notice of Motion for want of prosecution should be set aside.
- 2 Whether the applicant should be penalized for the mistake of counsel.
Ratio Decidendi
The court found that the applicant should not be punished for the mistake of counsel, who was absent when the matter was called due to attending another court. Exercising judicial discretion, the court held that the interests of justice required setting aside the dismissal order and reinstating the application for hearing.
Court Disposition
application allowed
Orders
- The order made on 14.11.2017 dismissing the applicant's Notice of Motion dated 1.11.2017 for want of prosecution is set aside.
- The applicant's Notice of Motion dated 1.11.2017 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 NAIROBI
CAUSE NO. 2134 OF 2012
(Before Hon. Justice Hellen S. Wasilwa on 30th May, 2018)
JULIUS NJAGI MBUI......................................................CLAIMANT
VERSUS
KENYA NUT COMPANY LIMITED..........................RESPONDENT
RULING
1. The Application before Court is the Application by the Claimant dated 1. 12. 2027 seeking the reinstatement of the Claimant’s Notice of Motion dated 1. 11. 2017 which was seeking reinstatement of suit and which was dismissed for want of prosecution.
2. The Application is brought under Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya and under Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules.
3. The Applicant sought orders that the order made on 14. 11. 2017 which dismissed his Notice of Motion dated 1. 11. 2017 for want of prosecution be set aside and the said application be reinstated for hearing.
4. The application is based on the following grounds that the Counsel for the Applicant was before Court No. 2 at 9 am but the Court had not started sitting. She avers that her matter was called soon thereafter after she had rushed to the next Court to attend to another matter. That in the interest of justice she seeks that the application be allowed.
5. The Respondents opposed this application stating that the orders of the Court was in accordance with the law.
6. The averments notwithstanding, in view of the fact that the Applicant should not be punished for mistake of his Counsel, I exercise my discretion and allow the application as prayed.
Dated and delivered in open Court this 30th day of May, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Miss Njiiri for Claimant
Respondent – Absent