[2014] KEELRC 1100 (KLR)
The court held that the claimant failed to provide sufficient details or evidence to justify the exercise of the court's discretion to reinstate the suit. The mere assertion that the advocate was before other courts on the material date, without specifying the cases or providing supporting details, was inadequate....
Source-derived case information.
- Citation
- [2014] KEELRC 1100 (KLR)
- Parties
- Claimant: Patrick A Asoha; Respondent: Paolo Rossi; Respondent: Volcano Diani Beach
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 368 of 2013
- Procedural Posture
- Employment Cause / Ruling on Motion to Reinstate Dismissed Suit
- Outcome
- motion to reinstate dismissed; suit remains dismissed
- Legal Topics
- Redundancy Procedure, Dismissal of Suit, Reinstatement of Suit, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick A Asoha
Claimant
Paolo Rossi
Respondent
Volcano Diani Beach
Respondent
Procedural Posture
Employment Cause / Ruling on Motion to Reinstate Dismissed Suit
Legal Issues
- 1 Whether the court should reinstate a suit dismissed for non-attendance upon application by the claimant.
- 2 Whether parties can consent to reinstate a suit dismissed by the court.
- 3 Whether the claimant provided sufficient grounds for the court to exercise its discretion to reinstate the suit.
Ratio Decidendi
The court held that the claimant failed to provide sufficient details or evidence to justify the exercise of the court's discretion to reinstate the suit. The mere assertion that the advocate was before other courts on the material date, without specifying the cases or providing supporting details, was inadequate. Furthermore, the court emphasized that parties cannot reinstate a dismissed suit by consent; such reinstatement must be determined judicially. The court found the handling of the matter dilatory and concluded that the claimant had not met the threshold for reinstatement. Consequently, the motion to reinstate the suit was dismissed.
Court Disposition
motion to reinstate dismissed; suit remains dismissed
Orders
- The motion dated 25 April 2014 seeking reinstatement of the suit is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT MOMBASA
(BIMA TOWERS)
CAUSE NO. 368 OF 2013
PATRICK A ASOHA CLAIMANT
v
PAOLO ROSSI 1st RESPONDENT
VOLCANO DIANI BEACH 2nd RESPONDENT
RULING
The Claimant through the firm of Siocha Okemwa & Co. Advocates filed a Memorandum of Claim against the Respondents on 6 November 2013 alleging unlawful redundancy and non-compliance with General Wages Order.
On 9 December 2013 the parties appeared before me and informed me that they wished to negotiate an out of court settlement. Mr. Njoroge for the Respondent also sought time to file a Response. I gave Mr. Njoroge 14 days within which to file a Response.The Cause were set for mention on 27 March 2014.
On 27 March 2014 none of the parties attended Court and I directed the Deputy Registrar to issue a notice to the Claimant to show cause why the suit could not be dismissed with a return date of 3 April 2014.
On 3 April 2014 none of the parties appeared and I dismissed the Cause. This was on the basis that there was on record a Notice to Show Cause dated 27 March 2014 from the Deputy Registrar addressed to both Advocates.
On 25 April 2014 the Claimant filed a motion seeking the variation of the order dismissing the suit and reinstating the suit.
When the motion came up on 21 May 2014, Mr. Okemwa informed me that they had consent to allow the motion. But I declined and ruled that the motion could not be compromised through consent and should be argued.
Before dealing with the motion on the merits I need to observe that parties cannot consent to reinstate a suit which has been dismissed by a Court since the dismissal order made by the Court through its inherent and statutory powers.
On the merits Mr. Okemwa stated that he was relying on the grounds set on the face of the motion and his supporting affidavit sworn on 25 April 2014. The grounds are that Mr. Okemwa was before the High Court in two different matters on 3 April 2014 and that the Advocates had mistakenly conceived the Cause was coming up on 2 April 2014 rather than 3 April 2014 and that the Respondent would not suffer any prejudice were the motion to be allowed.
Mr. Okemwa more or less deposed on the lines of the grounds save that both parties were at an advanced stage of negotiations.
One of the main reasons given by Mr. Okemwa was that he was before Odero J and Mukunya J on 3 April 2014 when this Cause came up. But Mr. Okemwa has not given any further details relating to the suits he was appearing before the two Courts.
In the view of the Court, this matter has been handled in a dilatory way. The Claimant should have given sufficient details on which cases the Advocate was attending to on 3 April 2014 bearing in mind he was seeking the Court to exercise its discretion in his favour.
The motion dated 25 April 2014 is therefore dismissed with no order as to costs.
Delivered, dated and signed in open Court in Mombasa on the 30th day of May 2014.
Radido Stephen
Judge
Appearances
Mr. Okemwa instructed by Siocha Okemwa & Co. advocates for Claimant
Mr. Njoroge instructed by Njoroge Katisya & Co. Advocates for Respondent