[2014] KEELRC 25 (KLR)
The court found that the order dismissing the claim for non-attendance was too harsh given the circumstances, particularly as the matter was only fixed for mention and not for hearing. The claimant's advocate provided a reasonable explanation for his absence, supported by affidavit evidence, and the claimant was...
Source-derived case information.
- Citation
- [2014] KEELRC 25 (KLR)
- Parties
- Claimant: Kazungu Tsuwi Kalama; Respondent: The Chairman, Secretary, Treasurer and/or Trustees of Almadrasa Tusalfiyal Burhaniyah (BBES)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 1 of 2014
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Claim
- Outcome
- application allowed; dismissal order set aside; claim reinstated
- Judges
- J Rika
- Legal Topics
- Reinstatement of Dismissed Claim, Non Attendance of Parties, Procedural Fairness, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kazungu Tsuwi Kalama
Claimant
The Chairman, Secretary, Treasurer and/or Trustees of Almadrasa Tusalfiyal Burhaniyah (BBES)
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Claim
Legal Issues
- 1 Whether the order dismissing the claim for non-attendance should be set aside.
- 2 Whether the claimant has shown sufficient cause for non-attendance on the mention date.
- 3 Whether the claim should be reinstated despite respondent's objection on limitation grounds.
Ratio Decidendi
The court found that the order dismissing the claim for non-attendance was too harsh given the circumstances, particularly as the matter was only fixed for mention and not for hearing. The claimant's advocate provided a reasonable explanation for his absence, supported by affidavit evidence, and the claimant was present but unable to communicate the delay due to unfamiliarity with court procedures. The court held that the claimant is entitled to be heard and that procedural fairness requires setting aside the dismissal order. The respondent's argument regarding limitation was noted but deemed not relevant to the present application, as the issue before the court was solely whether the...
Court Disposition
application allowed; dismissal order set aside; claim reinstated
Orders
- The order for dismissal of the claim dated 17th July 2014 is set aside.
- Parties shall move the court on the next course of action.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NO. 1 OF 2014
BETWEEN
KAZUNGU TSUWI KALAMA ….............................................................................. CLAIMANT
VERSUS
THE CHAIRMAN, SECRETARY, TREASURER AND/OR
TRUSTEES OF ALMADRASA TUSALFIYAL
BURHANIYAH (BBES) …................................................................................RESPONDENTS
Rika J
Court Assistant – Benjamin Kombe
Mr. Mwarandu instructed by J.K. Mwarandu & Company Advocates for the Claimant
Mr. Omollo instructed by Kamoti Omollo & Company Advocates for the Respondent
RULING
The dispute was fixed for mention on 17th July 2014. Both parties did not attend Court, and an order dismissing the Claim was given.
The Claimant made an Application dated 23rd July 2014, seeking to have the dismissal order set aside, and Claim reinstated.
The Application is supported by the Affidavit sworn on 23rd July 2014, by the Claimant's Advocates Mr. Joseph Karisa Mwarandu. He explains that he was caught up in heavy morning vehicular traffic, on his way from Malindi to Mombasa on the day of the mention. He arrived at 10. 00 a.m. in Court, only to find the matter had been mentioned and dismissed in the absence of the Parties. This position is supported by the Affidavit of the Claimant himself sworn on the same date.
The Respondent filed Grounds of Opposition on 9th October 2014. Its position is that the main Claim is time barred under Section 90 of the Employment Act 2007, and it would be prejudicial to the Respondent, to reinstate a Claim which is time barred.
The two Advocates consented to have this Application disposed of on the basis of their written Submissions, Pleadings and Affidavits on record.
The Court finds:-
The Claim was fixed for mention on 17th July 2014, with a view to issue of procedural orders by the Court. It was not for hearing.
The order dismissing the Claim, would appear too harsh, while an order for indefinite postponement would have sufficed.
The Claimant's Advocate has in his Affidavit shown good reason for his late arrival in Court on the material date. Traffic congestion is commonplace along the route travelled by Mr. Mwarandu on the mention date. The Court agrees it was difficult for him to reach the Court earlier, particularly as he was using Public Transport.
His Client was in Court, but not conversant with the Court process, and did not alert the Court about his Advocate's delay.
The Claim could well be time barred, as stated by the Respondent in its Grounds of Opposition. This however is not the issue that is under consideration; the issue for consideration revolves around the dismissal of the Claim for non-attendance, on the 17th July 2014.
The Claimant is entitled to be heard.
IT IS ORDERED:
a) The order for dismissal of the Claim dated 17th July 2014 is set aside.
b) Parties shall move the Court on the next course of action.
c) In the meantime the matter is Stood Over Generally.
d) Costs in the cause.
Dated and delivered at Mombasa this 18th day of December 2014.
James Rika
Judge