[2024] KEELRC 2802 (KLR)
The court found that the claimant failed to provide a satisfactory explanation for his repeated non-attendance at both pre-trial and trial stages, beyond stating that his advocate was indisposed on the day of dismissal. The claimant did not demonstrate any personal effort to attend court or explain his absence on...
Source-derived case information.
- Citation
- [2024] KEELRC 2802 (KLR)
- Parties
- Applicant: Timothy Odhiambo Otieno; Respondent: The Nairobi Hospital; Interested Party: Kenya Hospital Association
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 419 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- application dismissed; claim remains dismissed
- Judges
- L Ndolo
- Legal Topics
- Reinstatement of Dismissed Claim, Non Attendance, Judicial Discretion, Fair Labour Practices, Disciplinary Procedure, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Odhiambo Otieno
Applicant
The Nairobi Hospital
Respondent
Kenya Hospital Association
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the claimant has provided sufficient grounds for reinstatement of the dismissed claim.
- 2 Whether the court should exercise its discretion to set aside the dismissal for non-attendance.
- 3 Whether the claimant's right to fair hearing and fair labour practices was breached.
Ratio Decidendi
The court found that the claimant failed to provide a satisfactory explanation for his repeated non-attendance at both pre-trial and trial stages, beyond stating that his advocate was indisposed on the day of dismissal. The claimant did not demonstrate any personal effort to attend court or explain his absence on previous occasions. The court emphasized that the discretion to reinstate a suit is not automatic and must be exercised judiciously, requiring the applicant to show good cause. In the absence of any credible explanation for the established pattern of non-attendance, the court declined to set aside the dismissal order. The application for reinstatement was therefore disallowed,...
Court Disposition
application dismissed; claim remains dismissed
Orders
- The claimant's application dated 29th July 2024 is disallowed.
- The claim stands dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
Otieno v Nairobi Hospital; Kenya Hospital Association (Interested Party) (Cause 419 of 2019) [2024] KEELRC 2802 (KLR) (14 November 2024) (Ruling)
Neutral citation: [2024] KEELRC 2802 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 419 of 2019
L Ndolo, J
November 14, 2024
Between
Timothy Odhiambo Otieno
Claimant
and
The Nairobi Hospital
Respondent
and
Kenya Hospital Association
Interested Party
Ruling
1. This ruling flows from the Notice of Motion dated 29th July 2024, by which the Claimant seeks reinstatement of his claim which was dismissed on 9th April 2024, for non-attendance.
2. The Motion is supported by the Claimant’s own affidavit and is based on the following grounds:a.That the matter was dismissed on 9th April 2024 for failure to attend court;b.That previous Counsel for the Claimant was indisposed and unable to attend court when the matter came up for hearing;c.That since 9th April 2024, the Claimant has moved the Court with haste and instructed new Counsel to take over the matter;d.That unless the suit is reinstated, the Claimant’s Counsel will not be able to prosecute the matter and it will not have been determined on merit;e.That the Claimant was summarily dismissed in a process that has undergone considerable overhaul since the promulgation of the Constitution of Kenya, 2010;f.That the Claimant’s rights to fair labour practices under Article 41 of the Constitution was breached by his irregular dismissal;g.That the Claimant was summarily dismissed on 9th May 2019, after a farce disciplinary hearing that did not abide with the conditions in Articles 47 and 48 of the Constitution and the Fair Administrative Action Act;h.That the Claimant was not given an opportunity to be heard nor was he given copies of the evidence and materials relied upon by the Respondent to arrive at its decision, in breach of his rights under Articles 35, 47, 48 and 50 of the Constitution and Sections 3, 4 and 6 of the Fair Administrative Action Act;i.That unless this matter is heard and determined on merit, the Claimant will suffer irreparable loss and injury;j.That the orders sought will not prejudice either party.
3. The Respondent opposes the Motion by a replying affidavit sworn by its Company Secretary, Gilbert Nyamweya Omoke on 7th October 2024.
4. Omoke depones that there is no merit in the Claimant’s application. He points out that the Claimant had not taken any active steps to prosecute the suit since 2022. He states that the Claimant and his Advocate had failed to attend various pre-trial conferences before the Deputy; on 13th June 2022, 21st September 2022 and 7th November 2022
5. Omoke further states that the Claimant and his Advocate failed to attend hearings fixed for 6th March 2023, 21st November 2023 and 9th April 2024.
6. The Respondent maintains that it will be significantly prejudiced by the reinstatement of the suit as considerable time and expenses have been exhausted in the matter since its filing in 2019. Omoke depones that the Respondent has had to substitute witnesses and is likely to face similar challenges due to passage of time.
7. In his plea before the Court for reinstatement of his claim, the Claimant simply states that his Advocate was indisposed when the matter came up for hearing on 9th April 2024. He does not however explain what action he himself took on that day; if indeed his Advocate was unwell, the least the Claimant would have done was to show up and explain his predicament to the Court.
8. Further, the Claimant did not bother to give any explanation for failure to attend court on numerous previous occasions, both at the pre-trial and trial stages. The order sought by the Claimant is discretionary and the discretion of the Court is not candy to be dished out at will. A party seeking discretion must lay before the Court the reason why they deserve the exercise of discretion in their favour.
9. In the submissions filed on behalf of the Respondent, reference was made to the decision in Bilha Ngonyo Isaac v Kembu Farm Ltd & another [2018] KEHC 4729 (KLR) where it was held that the discretion of the Court must be exercised judiciously on the basis of facts and law.
10. The Respondent further cited the Court of Appeal decision in Habo Agencies Limited v Wilfred Odhiambo Musingo [KECA] 477 (KLR) where it was held that it is not enough for a party to lay blame on their Advocate, without demonstrating what action they themselves have taken in their capacity as a litigant.
11. In making the order dismissing the claim for non-attendance, I took notice of the Claimant’s failure to attend court not once but on several occasions. In the absence of any explanation on the established pattern of failure to attend court, I have no reason to set aside my orders.
12. The result is that the Claimant’s application dated 29th July 2024 is disallowed and the claim stands dismissed.
13. Each party will bear their own costs.
14. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF NOVEMBER 2024LINNET NDOLOJUDGEAppearance:Mr. Mogaka for the ClaimantMs. Onyango for the Respondent