[2022] KEELRC 737 (KLR)
The court found that the Claimant and his advocate were notified of the rescheduled hearing date through the postal address on record, and there was no denial of receipt or ownership of the address. The Claimant had a history of non-compliance with court orders, including failure to file documents within the granted...
Source-derived case information.
- Citation
- [2022] KEELRC 737 (KLR)
- Parties
- Claimant: Lejaale L. Maura; Respondent: Sinohydro Corporation Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 322 of 2013
- Procedural Posture
- Employment Cause / Ruling on Motion to Set Aside Dismissal
- Outcome
- motion dismissed
- Legal Topics
- Reinstatement of Dismissed Cause, Non Compliance With Court Orders, Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lejaale L. Maura
Claimant
Sinohydro Corporation Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Motion to Set Aside Dismissal
Legal Issues
- 1 Whether the dismissal of the Cause for non-attendance and non-compliance with court orders should be set aside.
- 2 Whether the Claimant and his advocate were properly notified of the hearing date.
- 3 Whether the Claimant demonstrated diligence and compliance with previous court orders.
Ratio Decidendi
The court found that the Claimant and his advocate were notified of the rescheduled hearing date through the postal address on record, and there was no denial of receipt or ownership of the address. The Claimant had a history of non-compliance with court orders, including failure to file documents within the granted period and failure to pay adjournment fees and costs as previously directed. The court concluded that the Claimant had not demonstrated diligence or sufficient cause to warrant the exercise of discretion in his favour. Consequently, the motion to set aside the dismissal was dismissed.
Court Disposition
motion dismissed
Orders
- The Motion filed on 14 February 2019 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 322 OF 2013
LEJAALE L. MAURA...............................................CLAIMANT
v
SINOHYDRO CORPORATION LTD ...................RESPONDENT
RULING
1. On 6 November 2018 when the Cause came up for hearing and in the absence of the Claimant, the Court dismissed the Cause herein upon an oral application by the Respondent.
2. The reasons for the dismissal were because the Claimant had failed to comply with orders issued on 2 March 2016, and for want of prosecution.
3. On 14 February 2019, the Claimant moved the Court seeking an order setting aside the dismissal order.
4. The reasons advanced in support of the application were that he and the advocate were not aware of the hearing on 6 November 2018 and that they only became aware of the dismissal on 30 January 2019.
5. The Respondent did not respond to the Motion.
6. Oblivious to the dismissal and the pending application on file, on 8 June 2021, the Deputy Registrar fixed the Cause for hearing on 24 November 2021.
7. When the Cause was called out for hearing, the Court notified the Claimant of the earlier dismissal, and it is only then that the Claimant disclosed that the instant Motion was still pending.
8. The Court has considered the Motion, supporting affidavit and the record.
9. On 5 July 2018, the Court fixed the Cause for hearing on 19 March 2019. The Claimant’s advocate was present.
10. However, on 26 October 2018, the Deputy Registrar wrote to the parties informing them that the hearing had been rescheduled to 6 November 2018 (during the service week to deal with old suits).
11. The notification was sent to the Claimant’s advocate through post (P.O. Box 16418, Nakuru).
12. The advocate has not denied the ownership of the postal address nor deposed as to whether the notification was received or not.
13. The Court also notes from the record that on 2 March 2016, the Claimant sought and obtained leave to file supplementary list of documents within 21-days.
14. The Claimant did not comply with the order.
15. On 13 December 2016, when the Cause came up for hearing, the Claimant and his advocate were absent and the Respondent prayed for the Cause to be dismissed.
16. Instead, the Court indulged the Claimant and directed that he pays adjournment fees and Respondent’s costs for the day.
17. There is nothing on record to show that the adjournment fees and costs were paid.
18. The conduct of the Claimant of not complying with court orders has not been diligent. It has been wanting and the Court declines to exercise its discretion in his favour.
19. The Motion filed in Court on 14 February 2019 is dismissed with no order on costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 23RD DAY OF FEBRUARY 2022.
RADIDO STEPHEN, MCIARB
JUDGE
Appearances
For Claimant Mboga G.G. & Co Advocates
Respondent did not participate
Court Assistant Chrispo Aura