[2018] KEELRC 519 (KLR)
The court found that the applicants' absence on the hearing date was due to the illness and subsequent death of their advocate, which constituted sufficient cause for non-attendance. The court also noted that there was no evidence on record to support the respondents' claim that the suit had been dismissed twice. In...
Source-derived case information.
- Citation
- [2018] KEELRC 519 (KLR)
- Parties
- Applicant: Pauline Wangare Nganga; Applicant: Moses Ndoho Njenga; Applicant: Simon Kioko Mule; Applicant: Jonathan Mwaluko; Applicant: James Mungai Kungu; Respondent: County Government of Kajiado; Respondent: Ministry of Devolution & Planning through the Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2463 of 2012
- Procedural Posture
- Miscellaneous Application / Application for Reinstatement of Suit After Dismissal
- Outcome
- application allowed; suit reinstated
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Adjournment Fees, Court Registry Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Wangare Nganga
Applicant
Moses Ndoho Njenga
Applicant
Simon Kioko Mule
Applicant
Jonathan Mwaluko
Applicant
James Mungai Kungu
Applicant
County Government of Kajiado
Respondent
Ministry of Devolution & Planning through the Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Application for Reinstatement of Suit After Dismissal
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether the applicants have provided sufficient cause for non-attendance on the hearing date.
- 3 Whether the claimants complied with previous court orders regarding adjournment fees.
Ratio Decidendi
The court found that the applicants' absence on the hearing date was due to the illness and subsequent death of their advocate, which constituted sufficient cause for non-attendance. The court also noted that there was no evidence on record to support the respondents' claim that the suit had been dismissed twice. In the absence of proof of repeated dismissals and given the exceptional circumstances of the advocate's illness, the court exercised its discretion to allow the application for reinstatement. The court further directed the parties to comply with timelines for filing witness statements and agreed issues to facilitate a hearing on the merits.
Court Disposition
application allowed; suit reinstated
Orders
- The application dated 20 August 2018 is allowed.
- The suit ELRC C/2463/2012 is reinstated.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2463 OF 2012
PAULINE WANGARE NGANGA 1st CLAIMANT
MOSES NDOHO NJENGA 2nd CLAIMANT
SIMON KIOKO MULE 3rd CLAIMANT
JONATHAN MWALUKO 4th CLAIMANT
JAMES MUNGAI KUNGU 5th CLAIMANT
v
COUNTY GOVERNMENT OF KAJIADO 1st RESPONDENT
MINISTRY OF DEVOLUTION & PLANNING THROUGH THE
HON. ATTORNEYGENERAL 2nd RESPONDENT
RULING NO. 2
1. Before Court is an application dated 25 September 2018 by the Claimants/Applicant’s seeking orders
1. …
2. This suit ELRC C/2463/2012 be re-instated.
3. The Order given 27th July 2018 herein to dismiss the above said suit be set aside and the Claimants be given leave to prosecute this suit.
4. Costs hereof be in the cause.
2. The grounds advanced in support of the application are that the applicants have a good case; there was an error in listing the Cause in the registry; that the applicants’ advocate was unable to attend Court on 27 July 2018 due to ill health, and that the Court declined to hear the advocate who was holding brief.
3. The 1st Respondent filed grounds in opposition to the application and it was contended that the application was fatally defective and or lacked merit while the 2nd Respondent made brief oral submissions that the applicants had not been diligent as the Cause had been dismissed twice.
4. The Court has considered all the material placed before it including the record.
5. When the Cause first came up for hearing on 19 November 2014, it was adjourned at the request of the applicants with an order that adjournment fees be paid.
6. There is nothing on record to show the applicants paid the adjournment fees.
7. On the question of errors on cause listing, the record shows that the applicants advocate was in Court on 2 May 2018 when the hearing was scheduled for 26 July 2018.
8. On 26 July 2018, the applicants did not attend Court but the Respondents advocate who appeared informed the Court that a notice for mention scheduled for 27 July 2018 had been served upon the parties. The Court directed that the Cause be mentioned on 27 July 2018.
9. On 27 July 2018, the applicants informed the Court that their advocate was ill while the Respondents applied for the Cause to be dismissed.
10. It has since emerged that it was widely known that the applicants’ advocate was ill and subsequently passed on.
11. Further, the Court has not been able to find any note on the file to suggest that the Cause herein had been previously dismissed as contended by the 2nd Respondent.
12. On account of the two reasons, the Court will allow the application dated 20 August 2018.
13. In order to prepare for a hearing on the merit, the Court directs that
(i) The Claimants to file/serve any witness statements/documents on or before 7 December 2018.
(ii) Respondents to file/serve any witness statements/documents on or before 14 December 2018.
(iii) Agreed Issues to be filed before 25 January 2019.
(iv) Convenient hearing date to be given hereinafter.
Delivered, dated and signed in Nairobi on this 30th day of November 2018.
Radido Stephen
Judge
Appearances
For applicants Mr. Asige instructed by Anthony Huka Khamati, Advocate
For 1st Respondent Katunga Mbuvi & Co. Advocates
For 2nd Respondent Mr. Motende, State Counsel, Office of the Attorney General
Court Assistant Lindsey