[2017] KEELRC 41 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

CAUSE NO. 1736 OF 2014

MBURU NJUGUNA WAITARA.....CLAIMANT/APPLICANT

VERSUS

BRAEBURN SCHOOLS LIMITED…............RESPONDENT

RULING

1. The Claimant/Applicant filed the notice of motion application dated 21st September 2017 seeking prayers in the main to the effect that this honourable court be pleased to set aside and/or vacate its order dismissing the suit and reinstate the suit for hearing on the merits. The application was supported by the affidavit of Wanja G. Wambugu sworn on 21st September 2017. In the affidavit, it was deponed that the Claimant had on 16th December 2015 filed an application to take his evidence de bene esseas he is based outside the country and that the court declined to grant the motion with parties directed to obtain dates at the registry. It was deposed that the court file could not be traced on the dates the Claimant sought to take dates and that the enquiries subsequently revealed that the suit had been dismissed on 6th April 2017 for want of prosecution in absence of the parties. The deponent stated that the Claimant was desirous of being heard on his claim and that the same was merited. The Claimant thus sought the reinstatement of the suit. The Respondent filed grounds in opposition on 3rd October 2017 opposing the motion. In the grounds, the Respondent argued that the application was an abuse of the court process, devoid of any merit and lacked evidentiary basis or support at all. The Respondent stated that the Claimant has no interest in the suit and that the application was tainted with indolence and equitable remedies sought could not be granted.

2. Directions were given on 9th October 2017 that the application was to be determined on basis of the pleadings filed and the submissions of parties. The Claimant/Applicant filed submissions on 30th October 2017 and the Respondent filed its submissions on 3rd November 2017. In the submissions he filed, the Claimant submitted that there had been concerted efforts by the Claimant to set down the case for hearing on various dates but the court file could not be traced. The Claimant asserted that contrary to the allusions by the Respondent, the Claimant had been vigilant in the case and that is why there were many letters to the court in seeking to trace the court file. It was submitted that the Claimant had even filed an application to take his evidence de bene essein December 2015 and that he had variously invited the Respondent’s counsel to take hearing dates in the matter. The final submission was that the Claimant had not been served with the notice from the court notifying parties that the case was coming up for notice to show cause on 6th April 2017. The Claimant relied on the cases of Telkom Kenya Ltd vWaterbuck Hotel Ltd [2005] eKLRwhich cited the case of CMC Holdings Ltd vNzioki [2004] 1 E.A 23for the position that the applicant had demonstrated the dismissal of his claim could be on account of error or mistake but was not on account of failure on his part; Joseph Kaara Henry Mwethaga vChris M. Gaturu, Thabiti Finance Company Limited (in liquidation), Mugunandu Farm Limited & Joel Gatimu Kibuchi [2012] eKLRwhere the court held that the discretion is to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but not to assist a party who has deliberately sought to obstruct or delay the course of justice; and Jane Wariuki Kibathi vSavings and Loan Kenya Ltd &2 Others [2006] eKLRwhere the court held that there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just and that the main concern of the court is to do justice to the parties.

3. The Respondent submitted that the Claimant had filed his claim and only filed an application to have his evidence taken de bene essea year down the road. The Respondent was opposed and the court after hearing both sides dismissed the application directing parties to take mutually convenient dates at the court registry. Since then, it was submitted that the Claimant had not taken steps to set down the case for hearing as he knew he had no claim against the Respondent. The Respondent submitted that the Claimant was guilty of indolence and that the letters written seeking to fix the case for hearing were in June and July 2017 after the case had been dismissed in April 2017. This according to the Respondent showed that the Claimant had not been keen to fix the case for hearing. The Respondent placed reliance on the case of Fran Investments Limited vG4S Security Services Limited [2015] eKLRwhere Gikonyo J. held that on a notice to show cause why the suit should not be dismissed for want of prosecution, and if no cause is shown to the satisfaction of the court, the court may dismiss the suit. The Respondent submitted that the Claimant had not given sufficient reasons for the court to set aside and/or vacate its orders dismissing the suit and that it would appear the advocate is interested in the suit but not the Claimant. The Respondent thus urged the court to dismiss the application dated 21st September 2017.

4. The setting aside of a dismissal order of the court is on the grounds set out in various precedent cited before me. In the case of Telkom Kenya Ltd vWaterbuck Hotel LtdKimaru J. held that the court has unfettered discretion either to allow or refuse to set aside the order of dismissal. The principles for setting aside orders of dismissal are more or less similar to the principles to be considered when setting aside ex-parte judgments. Clearly, the discretion of the court is to be exercised on principles. The principles for setting aside ex-parte judgments are as set out in the famous case of Shah vMbogo [1967] EA 116where the court held that the discretion should be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but not to assist a party who has deliberately sought to obstruct or delay the course justice.

5. I have perused the court record and note that the Claimant sought to fix the case for hearing on 10th March 2016, wrote to the Deputy Registrar seeking the court file to be traced on 17th June 2016 before the letter dated 8th March 2017 which was the notice to show cause. The letter is addressed to both the Claimant and Respondent’s advocates on record. The letter does not have any evidence it was served or posted to the advocates. I am mindful that dismissal of the suit was the consequence of no activity on the court file for over a long period, in this case close to one year. The Claimant has attached other correspondence that was made pursuant to the dismissal but despite these letters, it is clear there was interest in pursuing the claim. It is undeniable that the Claimant sought to fix dates and when that failed tried to trace the court file to fix dates to no avail. In my view, there is a mistake or error which is not of the Claimant’s making. If the court file was missing for some time as demonstrated by the letter dated 16th June 2016 addressed to the Deputy Registrar of this court, there is basis to set aside the draconian orders of the court made on 6th April 2017. The suit is reinstated with a rider. The Claimant to set the suit down for hearing within 3 months of today failing which the suit will stand dismissed with costs to the Respondent. Costs of the notice of motion dated 21st September 2017 shall be costs in the cause.

It is so ordered.

Dated and delivered at Nairobi this 29th day of November 2017

Nzioki wa Makau

JUDGE