[2017] KEELRC 793 (KLR)
The court found that the claimant's failure to attend was due to a genuine misunderstanding arising from the transition period of the newly established Employment and Labour Relations Court. Recognizing the importance of according parties a fair hearing and the absence of exceptional circumstances justifying denial...
Source-derived case information.
- Citation
- [2017] KEELRC 793 (KLR)
- Parties
- Applicant: Patrick Owino Odawa; Respondent: Allpark Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 541 of 2012
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal set aside; suit reinstated.
- Judges
- NJ Abuodha
- Legal Topics
- Reinstatement of Dismissed Suit, Non Attendance, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Owino Odawa
Applicant
Allpark Industries Limited
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for non-attendance should be set aside and the suit reinstated.
- 2 Whether the claimant was denied a fair hearing due to confusion during the transition period of the court.
Ratio Decidendi
The court found that the claimant's failure to attend was due to a genuine misunderstanding arising from the transition period of the newly established Employment and Labour Relations Court. Recognizing the importance of according parties a fair hearing and the absence of exceptional circumstances justifying denial of a hearing, the court exercised its discretion to set aside the dismissal order. The suit was reinstated to ensure justice and fairness, particularly given the confusion acknowledged by the court as understandable during the transition period.
Court Disposition
Application allowed; dismissal set aside; suit reinstated.
Orders
- The decision dismissing the suit is set aside.
- The matter is reinstated for hearing.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 541 OF 2012
PATRICK OWINO ODAWA............................................CLAIMANT
VERSUS
ALLPARK INDUSTRIES LIMITED............................RESPONDENT
Mr. Agina for claimant/applicant
M/S Adioloyr for respondent
RULING
1. This is an application to set aside the decision of Marete J. given on 12th December 2012 dismissing this suit for non-attendance. The suit was filed on 2nd April 2012. The suit was responded to on 18th June 2012.
2. On 29th May 2012, the suit was set for hearing by Hon. Madzayo J. on 12th November 2012 at 10 a.m. in the presence of Mr. Aketch for claimant and Mr. Malonza for respondent.
3. On the 12th November 2012, the matter was listed for hearing before Justice D. K. Marete. Both parties did not appear and the suit was dismissed for want of prosecution.
4. The application to set aside the decision dismissing the claim and reinstate the same was filed on 29th January 2013, two months after the suit was dismissed. However, the same has taken many years to be heard and determined.
5. Counsel for the claimant, Mr. Agina states that on the 12th December 2012, when the matter was dismissed the claimant was at the High Court under the misunderstanding that all Industrial Court Judges were sitting there. It later dawned on counsel that the matter was listed before D. K. Marete J. at NSSF Building.
6. The court takes judicial notice that this was the transition period for the newly established Employment and Labour Relations Court and the confusion raised by counsel for the claimant, Mr. Agina is understandable.
7. The court should endeavor to accord parties a fair hearing before dismissing their suits and only in exceptional circumstances should the hearing be denied.
8. In the circumstances of this case, the application is allowed, the decision dismissing the suit is set aside and the matter is reinstated.
9. The same will be granted a hearing date on priority basis given its age.
10. Costs in the cause.
Dated and Signed at Nairobi this 18th day of August, 2017.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE
Dated, Delivered and Signed at Nairobi this 18th day of August, 2017.
JORAM NELSON ABUODHA
JUDGE
Delivered in the presence of:
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