[2022] KEELRC 13446 (KLR)
The court found that the claimant's failure to attend the virtual hearing was credibly explained by network challenges, a not uncommon occurrence in virtual proceedings. The judge accepted the claimant's explanation, given on oath, and exercised judicial discretion to reinstate the application. However, the court...
Source-derived case information.
- Citation
- [2022] KEELRC 13446 (KLR)
- Parties
- Applicant: Kennedy Momanyi Nyangenya; Respondent: National Police Service Commission; Respondent: National Police Service; Respondent: Commandant, General Service
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E695 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- Application for reinstatement allowed; interim orders not reinstated; costs in the cause.
- Judges
- L Ndolo
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Exercise of Discretion, Virtual Hearings, Interim Orders, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Momanyi Nyangenya
Applicant
National Police Service Commission
Respondent
National Police Service
Respondent
Commandant, General Service
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the claimant has provided sufficient grounds for reinstatement of the application dismissed for non-attendance.
- 2 Whether the court should exercise its discretion to reinstate the interim orders vacated upon dismissal of the application.
Ratio Decidendi
The court found that the claimant's failure to attend the virtual hearing was credibly explained by network challenges, a not uncommon occurrence in virtual proceedings. The judge accepted the claimant's explanation, given on oath, and exercised judicial discretion to reinstate the application. However, the court declined to reinstate the interim orders that had lapsed upon dismissal, holding that such orders dissipate with the dismissal and must be sought afresh. The costs of the application were ordered to be in the cause.
Court Disposition
Application for reinstatement allowed; interim orders not reinstated; costs in the cause.
Orders
- The claimant's application dated July 28, 2022 is allowed.
- The earlier application dated August 19, 2021 is reinstated.
Full Case Text
Judgment text and source record
28 paragraphs
Nyangenya v National Police Service Commission & 2 others (Cause E695 of 2021) [2022] KEELRC 13446 (KLR) (8 December 2022) (Ruling)
Neutral citation: [2022] KEELRC 13446 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E695 of 2021
L Ndolo, J
December 8, 2022
Between
Kennedy Momanyi Nyangenya
Claimant
and
National Police Service Commission
1st Respondent
National Police Service
2nd Respondent
Commandant, General Service
3rd Respondent
Ruling
1. By his application dated July 28, 2022, the claimant seeks reinstatement of his earlier application dated 19th August 2021, which was dismissed for non-attendance on 19th July 2022.
2. The Claimant also seeks reinstatement of the interim orders vacated by the Court on the said date.
3. The application is supported by the claimant’s own affidavit and is based on the following grounds:a.The claimant is an employee of the National Police Service at the rank of Senior Superintendent of Police (SSP) serving under the General Service Unit;b.The Claimant’s application dated August 19, 2021 came up for virtual inter partes hearing on July 19, 2022 and was dismissed for non-attendance;c.The claimant’s Advocate, Mr. Muia who has conduct of the matter was out of Nairobi in Makindu, Makueni County and could not log in for the hearing due to network problems and poor connectivity;d.The claimant had interim orders in force which lapsed after the application dated August 19, 2022 was dismissed;e.There will be no prejudice if the application is reinstated for hearing on merit.
4. The 2nd and 3rd respondents filed grounds of opposition stating that:a.The application is an outright abuse of the court process and a waste of judicial time. The claimant has not provided adequate grounds to warrant the court to exercise its discretion to reinstate an application as provided under order 12 of the Civil Procedure Rules;b.The claimant has not endeavoured to provide any evidence to demonstrate that he indeed attempted to log into the virtual court. There is no electronic or photographic evidence such as a call log or screenshot to show an attempt made to log in or to call the court or counsel for the respondents to explain the difficulties. A blanket allegation that there was poor network in Makindu on the material date is misleading;c.The claimant is not desirous of prosecuting the application as on the date of the hearing, neither the claimant nor his Advocate was present in court despite the hearing being virtual;d.The claimant has not demonstrated any vigilance in prosecuting the main application dated August 19, 2021 since interim orders were granted and has on several occasions adjourned its hearing;e.Equity aids the vigilant and not the indolent (see Leonard Oseme Karani v Sunflag Textile & Knitwear Mills Limited [2019] eKLR);f.The claimant cannot litigate on the same issue in perpetuity. There must be an end to litigation;g.Granting the orders sought would open a Pandora’s box where any party desirous of rolling back the wheels of justice would allege that there were technical challenges in logging into virtual court and thus undo what a vigilant party could rightly have achieved.
5. The order sought by the claimant is discretionary. In making his plea, he states that failure to attend court on the day his application dated August 19, 2021 was dismissed, was occasioned by internet challenges. This is not an uncommon occurrence and I have no reason to disbelieve the averments made on oath.
6. I therefore exercise discretion in favour of the claimant and allow his application dated July 28, 2022, with the consequence that the earlier application dated August 19, 2021 is reinstated.
7. Regarding the request for reinstatement of the interim orders vacated with the dismissal of the application, the only thing I will say is that with the dismissal of the application, the interim orders dissipated and the claimant will have to make a fresh plea in this regard.
8. The costs of the application will be in the cause.
9. These are the orders of the court.
DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF DECEMBER 2022LINNET NDOLOJUDGEAppearance:Mr. Muia for the ClaimantMs. Rwenji h/b Ms. Opiyo for the 1st RespondentMr. Mulili for the 2nd and 3rd Respondents