[2022] KEELRC 13472 (KLR)
The court found that although the claimant and his counsel had demonstrated a lack of seriousness in prosecuting the suit, the explanation for non-attendance—misdiarising the hearing date—was supported by evidence. Given the silence of the Employment and Labour Relations Court Rules on reinstatement but the broad...
Source-derived case information.
- Citation
- [2022] KEELRC 13472 (KLR)
- Parties
- Applicant: Dan Mungalitsi Musamali; Respondent: Trans Africa Motors Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause E032 of 2021
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application allowed; dismissal order set aside; suit reinstated with conditions.
- Judges
- AK Nzei
- Legal Topics
- Reinstatement of Dismissed Suit, Non Attendance, Court Discretion, Procedural Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dan Mungalitsi Musamali
Applicant
Trans Africa Motors Ltd
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the court should set aside the dismissal order for non-attendance and reinstate the claimant's suit.
- 2 Whether the claimant's explanation for non-attendance constitutes sufficient cause to warrant reinstatement.
Ratio Decidendi
The court found that although the claimant and his counsel had demonstrated a lack of seriousness in prosecuting the suit, the explanation for non-attendance—misdiarising the hearing date—was supported by evidence. Given the silence of the Employment and Labour Relations Court Rules on reinstatement but the broad discretionary powers under section 12(3)(viii) of the Act, the court exercised its discretion in the interest of justice to set aside the dismissal order. However, the court warned that this would be the final opportunity for the claimant to prosecute the suit, imposing a strict timeline for compliance.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated with conditions.
Orders
- The dismissal order dated June 6, 2022 is set aside.
- The claimant shall prosecute the suit within six months of this ruling, failing which the suit shall stand dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Musamali v Trans Africa Motors Ltd (Environment and Land Case Civil Suit E032 of 2021) [2022] KEELRC 13472 (KLR) (8 December 2022) (Ruling)
Neutral citation: [2022] KEELRC 13472 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Cause E032 of 2021
AK Nzei, J
December 8, 2022
Between
Dan Mungalitsi Musamali
Claimant
and
Trans Africa Motors Ltd
Respondent
Ruling
1. When the suit herein came up for formal proof on May 11, 2022, counsel for the claimant told the court that he was ready to proceed with the claimant’s case. However, shortly after the claimant was sworn to testify, counsel told the court that he had realized that he had not filed the claimant’s witness statement. counsel asked the court to stand the witness/the claimant down and to grant him leave to file a witness statement.
2. The court stood the claimant down, and adjourned the matter. The adjournment was, however, marked as the last on the part of the claimant. The claimant was granted seven days to file his witness statement, and the suit was fixed for formal proof on June 6, 2022.
3. On June 6, 2022, however, both the claimant and his counsel did not attend court for formal proof, and the suit was dismissed for non-attendance on the part of the claimant. Dismissal of the claimant’s suit was done under rule 22(2) of the Employment and Labour Relations Court (Procedure) Rules which provides that the court may dismiss a suit where a party fails to attend court, except for good reason to be recorded.
4. In the present case, no reason was given for non-attendance by both the claimant and his counsel. Dismissal of the suit was the only order that the court could give, under the circumstances.
5. On October 17, 2022, the claimant filed the notice of motion evenly dated seeking variation and/or setting aside of the dismissal order dated June 6, 2022. The application is supported by an affidavit of Dorine Chano advocate sworn on October 17, 2022. It is deponed in the said affidavit that counsel for the claimant had misdiarised the hearing date, June 6, 2022 as September 6, 2022, and annexed copies of her diary for the two dates to the supporting affidavit.
6. The Employment and Labour Relations Court Rules are silent on reinstatement of suits dismissed for non-attendance by parties thereto. On the other hand, section 12(3) (viii) gives this court jurisdiction to give 'any other appropriate relief the court may deem fit to grant.'
7. Although there is an apparent lack of seriousness on the part of the claimant towards prosecution of this suit, I will, in the interest of justice, grant the claimant a final opportunity to prosecute his case.
8. Consequently, the notice of motion dated October 17, 2022 is hereby allowed in the following terms:-a)the dismissal order dated June 6, 2022 is hereby set aside.b)the claimant shall prosecute the suit within six months of this ruling, failing which the suit shall stand dismissed.c)the suit shall be mentioned in court on December 14, 2022 to fix a formal proof date.
9. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 8TH DAY OF DECEMBER 2022AGNES KITIKU NZEIJUDGEORDERIn view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.AGNES KITIKU NZEIJUDGEAppearance:N/A ClaimantN/A Respondent