[2023] KEELRC 2880 (KLR)

Karani v Judicial Service Commission (Cause E191 of 2022) [2023] KEELRC 2880 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2880 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E191 of 2022

SC Rutto, J

November 10, 2023

Between

Violet Jedida Karani

Claimant

and

Judicial Service Commission

Respondent

Ruling

1. The claimant/applicant has moved this Court vide a Notice of Motion Application dated May 8, 2023, through which she seeks to have the Court set aside its order of May 2, 2023 and reinstate the suit which was dismissed for non-attendance.

2. The applicant has premised her Application on the following grounds: -a.She was aware of the hearing date of the case and had travelled from Migori to Nairobi to attend it physically but matters were conducted online.b.Upon learning that hearings were being conducted online, she tried to log in but her gadget failed her hence she was not able to attend the court proceedings.c.She failed to access court proceedings and made an inquiry from the Court Assistant who informed her that the matter had been dismissed for want of prosecution thus rendering the Application necessary.d.Non-attendance of Court on May 2, 2023 was not intentional on her part.e.She has been at all times ready to have the suit heard and determined on merits.f.To terminate the claim without being heard violates her constitutional right to a fair hearing and amounts to a perpetual injustice to her.g.She was not acquainted with online hearings and requests for a physical hearing in open court.h.The fundamental duty of Courts is to do justice between the parties by allowing each party an opportunity to put their cases upon the merits of the matter.i.She is interested in pursuing this matter to its logical conclusion, heard and determined on merits and not on a technicality.

3. The Application was opposed through the respondent’s Replying Affidavit sworn on July 14, 2023, by Anne Amadi, the Chief Registrar of the Judiciary and the Secretary to the Judicial Service Commission, the respondent herein. Ms. Amadi avers that: -a.She is advised by the respondent’s advocate which advice she believes to be correct that the Applicant is undeserving of the prayers sought as the reason she gives for failing to attend court is unwarranted.b.Her conduct reeks of slackness as this was not the first time she had failed to attend court due to an alleged technical hitch or the unreliability of her gadget.c.She is aware that the applicant has been an employee of the respondent for more than 15 years and that by the time her contract was terminated in 2021, courts had started employing the use of technology and conducting court sessions online. As such she ought to have reasonably suspected that her matter would be conducted in the same manner and made proper arrangements for the same.d.On March 27, 2023 the matter was listed and the Applicant failed to appear. She alleges that a technical hitch occasioned her non-attendance.e.When the matter came up for hearing on 2nd May 2023, once again, she failed to make an appearance and now still blames her nonattendance on her gadget stating that it went off air.f.Being a former employee of the respondent, the claimant is acquainted with court online sessions and ought to have taken all reasonable steps to ensure online attendance throughout the court's sessions.g.Having noted that her device had issues, she had plenty of time to have it repaired before the hearing date.h.Being the applicant in this matter, and having been duly served with the mention and hearing notice for the hearing of her case, she cannot then allege right to fair hearing when such delay was occasioned by her inaction which caused the court to allow an application to dismiss her suit.i.She is advised by the respondent's Advocate that the applicant does not disclose a reasonable explanation as to why she absconded court. As such, she deems that the Applicant is not desirous of prosecuting this matter.

4. Upon being served by the respondent’s Replying Affidavit, the applicant filed a Supplementary Affidavit through which she avers that:a.All along she had shown active participation in the matter and the respondent should not be allowed to steal a match on the basis of non-attendance of Court occasioned by inability to access the virtual court session as her gadget went off air.b.The reason for non-attendance of Court is candid and justifiable as after failure by the gadget she made physical efforts to trace the Court whereof she was informed by the court assistant that the matter had been dismissed for non-attendance.c.The gadget issue was also confirmed by respondent's advocate who had been directed by the court to call her and indeed confirmed her phone was off air.d.This honourable court has discretion to set aside its ex-parte orders and to reinstate suit and therefore the position taken by the respondent in its Replying Affidavit is unmerited as it goes against the rules of natural Justice and right to a fair hearing.

5. When the matter came up for mention on July 31, 2023, the Court directed that the application be canvassed by way of written submissions. Both parties complied and I have considered their Written Submissions.

Analysis and determination 6. Upon evaluating the application, the response thereto and the rival submissions, it is evident that the singular issue for determination is whether the Court should set aside its orders of May 2, 2023, dismissing the claimant’s suit for want of prosecution.

7. The decision on whether the suit should be reinstated for trial is a matter of judicial discretion and rests on the facts of each case. As was stated in the case of Shah vs Mbogo (1979) EA 116, this discretion has to be exercised judiciously and is intended to avoid injustice or hardship resulting from inadvertence or excusable mistake or error it but should not cause injustice to the opposite party. Further, the party seeking the court's favour ought to adduce sufficient and plausible reasons to warrant the court to set aside the order of dismissal and subsequently reinstate the suit.

8. Turning to the instant case, the claimant’s suit was dismissed on May 2, 2023 on account of non-attendance. In entering the order of dismissal, the court noted that the claimant had been served with the hearing notice and since this was her case, she ought to have been at the forefront in prosecuting the same. On this account, the court observed that the claimant had seemingly lost interest in the suit hence the same was dismissed with costs.

9. It is worth pointing out that when the matter was first called out and the claimant’s absence noted, the court placed the file aside and the respondent’s advocate was asked to contact her. The respondent’s Advocate reported back to Court that she had attempted to reach the claimant three times but her phone was off.

10. According to the claimant, her failure to attend court was occasioned by technical hitches in that her phone went off air.

11. Applying the principle established in the case of Shah vs Mbogo (supra), I am persuaded that the reason brought forth by the claimant for her failure to attend Court on May 2, 2023 is plausible.

12. In so finding, the court takes cognizance of the fact that technological challenges are a common phenomenon in the era of virtual court sessions.

13. The court further notes that the claimant moved the Court on May 8, 2023 following the dismissal of her suit on May 2, 2023, hence is a sign of her effort to reach the court and set aside the dismissal orders at the earliest opportunity possible.

14. In light of the foregoing reasons, I find that this is a case that merits the exercise of the court’s discretion in favour of the claimant.

15. What’s more, the court is mindful of the need to serve substantive justice and to give effect to the principle objective of this court.

16. It is also not lost to the court that dismissal of a suit is a draconian act that drives a litigant away from the seat of justice and as such, discretion ought to be exercised judiciously. This position was amplified in the case John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows: -“Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary.”

17. Therefore, and in the interests of justice I am inclined to allow the application dated May 8, 2023. Subsequently, the order of May 2, 2023, dismissing the claimant’s suit in its entirety for non-attendance is hereby set aside and the claim is reinstated.

18. The claimant shall bear the costs arising out of this application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ………………………………STELLA RUTTOJUDGEAppearance:For the Claimant/Applicant No AppearanceFor the Respondent Ms. AdukeCourt Assistant Abdimalik HusseinORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE4