[2023] KEELRC 2420 (KLR)
The court found that the claimant's counsel had provided a reasonable explanation for his non-attendance at the hearing, namely network challenges that prevented timely access to the virtual court session. The claimant himself was present and ready for the hearing at his advocate's office. The respondent did not...
Source-derived case information.
- Citation
- [2023] KEELRC 2420 (KLR)
- Parties
- Applicant: Japhet Nyambu; Respondent: China City Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 896 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- application allowed; suit reinstated
- Judges
- AK Nzei
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Virtual Hearing Challenges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Nyambu
Applicant
China City Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance due to counsel's network challenges.
- 2 Whether the applicant has provided sufficient cause for non-attendance at the hearing.
Ratio Decidendi
The court found that the claimant's counsel had provided a reasonable explanation for his non-attendance at the hearing, namely network challenges that prevented timely access to the virtual court session. The claimant himself was present and ready for the hearing at his advocate's office. The respondent did not oppose the application for reinstatement, despite being served. In the interests of justice and considering the unopposed nature of the application, the court exercised its discretion to set aside the dismissal order and reinstate the suit, subject to the condition that the suit be prosecuted within 90 days, failing which it would stand dismissed. Costs of the application were...
Court Disposition
application allowed; suit reinstated
Orders
- The dismissal order dated 14/2/2023 is set aside.
- The claimant’s suit is reinstated.
Full Case Text
Judgment text and source record
20 paragraphs
Nyambu v China City Ltd (Cause 896 of 2017) [2023] KEELRC 2420 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEELRC 2420 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Cause 896 of 2017
AK Nzei, J
October 5, 2023
Between
Japhet Nyambu
Claimant
and
China City Ltd
Respondent
Ruling
1. The suit herein came up for hearing before me on 14/2/2023, and there being no appearance for both parties herein, I dismissed the suit for non-attendance. At 11:25 am on the same date while the court was still in session, Counsel for the claimant (Mr. Gichana) appeared virtually and informed the court that he had had network problems and did not manage to log onto the court’s virtual platform/session in time.
2. On 28/2/2023, the claimant filed a notice of motion dated 14/2/2023, seeking reinstatement of the dismissed suit herein. The application is supported by affidavits of Edward Gichana Advocate and Japhet Nyambu, sworn on 14/2/2023 and 16/2/2023 respectively.
3. It is deponed in the said two supporting affidavits that Counsel for the claimant had network challenges on 14/2/23 and did not manage to address the court virtually in the morning of the hearing date, leading to dismissal of the suit for non-attendance. The claimant deponed that he turned up in the Advocate’s offices in the morning of the hearing date, ready for the hearing, and logged onto thecourt’s online platform. He did not, however, state why he did not respond when his case was called out for hearing. I will not, however, hold this against the claimant as he was represented in the suit by Counsel.
4. The Respondent did not oppose the application, though the same is shown to have been served. The application therefore stands unopposed, and I allow the same in the following terms:-a.the dismissal order dated 14/2/2023 is hereby set aside, and the claimant’s suit is hereby reinstated.b.the suit shall be prosecuted within 90 days, from the date of this ruling, failing which it shall stand dismissed.c.costs of the application shall be in the cause.
5. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 5TH OCTOBER 2023AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable court fees.AGNES KITIKU NZEIJUDGE