[2019] KEELRC 286 (KLR)
The court found that the Claimant and his advocate were aware of the hearing dates, as evidenced by the mention notices issued and served. Their failure to attend court on both 30 October 2018 and 13 November 2018 was not satisfactorily explained. Furthermore, the Claimant waited over a year to file the application...
Source-derived case information.
- Citation
- [2019] KEELRC 286 (KLR)
- Parties
- Applicant: Peter M. Kimotho; Respondent: Hon. Attorney General; Respondent: Permanent Secretary, Provincial Administration & Internal Security; Respondent: County Commissioner Kiambu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 170 of 2017
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs
- Judges
- MSA Makhandia
- Legal Topics
- Limitation of Actions, Setting Aside Orders, Preliminary Objection, Professional Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter M. Kimotho
Applicant
Hon. Attorney General
Respondent
Permanent Secretary, Provincial Administration & Internal Security
Respondent
County Commissioner Kiambu
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the Claimant was aware of the hearing dates on 30 October 2018 and 13 November 2018.
- 2 Whether the Claimant provided sufficient explanation for the delay in seeking to set aside the dismissal order.
- 3 Whether the application to set aside the dismissal order had merit.
Ratio Decidendi
The court found that the Claimant and his advocate were aware of the hearing dates, as evidenced by the mention notices issued and served. Their failure to attend court on both 30 October 2018 and 13 November 2018 was not satisfactorily explained. Furthermore, the Claimant waited over a year to file the application to set aside the dismissal order, offering no explanation for this inordinate delay. The court held that the conduct of the Claimant amounted to professional recklessness and that no sufficient cause had been shown to warrant setting aside the dismissal order. Consequently, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal order is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 170 OF 2017
PETER M. KIMOTHO.....................................................................CLAIMANT
VERSUS
HON. ATTORNEY GENERAL............................................1st RESPONDENT
PERMANENT SECRETARY, PROVINCIAL
ADMINISTRATION & INTERNAL SECURITY............2nd RESPONDENT
COUNTY COMMISSIONER KIAMBU............................3rd RESPONDENT
RULING
1. On 13 November 2018, the Court upheld a preliminary objection by the Respondents that the cause of action advanced by the Claimant was statute time barred.
2. On 1 November 2019, the Claimant moved the Court under certificate of urgency seeking an order setting aside the orders of 13 November 2018.
3. The application was urged on 21 November 2019 and is the subject of this Ruling.
4. The primary grounds urged in support of the application are that the Claimant was not aware of the hearing date and that the Cause had high chances of success.
5. The Court has looked at the record.
6. On 26 October 2018, the Claimant’s advocate issued a mention notice directed to the Respondents notifying them that the Cause was coming up on 30 October 2018.
7. The Claimant and/or his advocate did not attend Court on 30 October 2018 at which appearance the Respondents informed the Court that they had filed a Notice of Preliminary Objection.
8. The Court directed that the Preliminary Objection be taken on 13 November 2018.
9. On 9 November 2018, the Claimant caused to be issued and served upon the Respondents a mention notice indicating that the Cause was coming for formal proof on 13 November 2018.
10. The Claimant and his advocate nevertheless did not attend Court on 13 November 2018 and the Court allowed the Respondents to prosecute the Preliminary Objection culminating in the dismissal of the Cause.
11. The assertion by the Claimant that he and/or his advocate were not aware of the proceedings on 30 October 2018 and 13 November 2018 cannot be truthful.
12. It took the Claimant over 1 year to move the Court to attempt to set aside the dismissal order. No explanation was tendered for the 1 year delay. The Court finds it inordinate.
13. The conduct of the Claimant in prosecuting his suit has at the very least been professionally reckless.
14. The consequence of the forgoing is that the Court finds no merit in the application and orders it dismissed with costs.
Delivered, dated and signed in Nairobi on this 22nd day of November 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Mutali instructed by Mutali Wanyama & Co. Advocates
For Respondents Ms. Chesyna, State Counsel, Office of the Attorney General
Court Assistant Judy Maina