[2016] KEELRC 1577 (KLR)
The court found that the claimant failed to provide a satisfactory explanation for his absence at the hearing and for the lack of communication with his counsel. The court noted that the issue of poor communication had a history in the case and that the claimant did not demonstrate diligence in following up on the...
Source-derived case information.
- Citation
- [2016] KEELRC 1577 (KLR)
- Parties
- Claimant: Peter Njuguna Murima; Respondent: Postal Corporation of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 565 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application to set aside dismissal and reinstate suit dismissed.
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njuguna Murima
Claimant
Postal Corporation of Kenya
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside its previous order dismissing the suit for non-attendance and reinstate the suit for hearing on the merits.
- 2 Whether the claimant provided sufficient explanation for his absence and failure to communicate with counsel.
Ratio Decidendi
The court found that the claimant failed to provide a satisfactory explanation for his absence at the hearing and for the lack of communication with his counsel. The court noted that the issue of poor communication had a history in the case and that the claimant did not demonstrate diligence in following up on the progress of his case. The absence of any explanation as to how the claimant and his counsel re-established contact after the dismissal further undermined the credibility of the application. Consequently, the court declined to exercise its discretion to set aside the dismissal and dismissed the application for reinstatement.
Court Disposition
Application to set aside dismissal and reinstate suit dismissed.
Orders
- The motion dated 15 December 2015 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 565 OF 2014
(Originally Nakuru Civil Case No. 2 of 2003)
PETER NJUGUNA MURIMA CLAIMANT
v
POSTAL CORPORATION OF KENYA RESPONDENT
RULING NO. 2
1. On 4 December 2015, the Court delivered a considered ruling in which it dismissed the Claim which the Claimant is attempting to resuscitate through the motion the subject of this ruling.
2. The motion seeks
a) ….
b) This Honourable Court be pleased to set aside its orders of 4/11/2015 dismissing the suit for non-attendances of Court by the Plaintiff on 23/11/2015 and instead reinstate the suit for hearing and determination on merit.
c)….
3. The Claimant has advanced three main reasons in support of his application. These are that his advocate used a postal address he had long stopped using to notify him of the hearing set for 23 November 2015, that he was on bed rest from 20 November 2015 to 27 November 2015, and that he had sold his mobile phone and thus he could not be reached.
4. The Respondent did not oppose the application at the submission stage though Mr. Osamba Otieno, Advocate had filed a replying affidavit in Court on 28 January 2016 vehemently opposing the motion.
5. The Court has considered the application and submissions by Mr. Kimatta as well as the replying affidavit aforesaid.
6. In the ruling dismissing the Cause, the Court set out the background surrounding the claim and the Claimant’s disinterest in prosecuting the claim over the years.
7. The Court regrettably sees no demonstration by the Claimant why the Court ought to exercise its discretion in his favour, as the issue of lack of communication between him and his counsel has antecedents, as is clear from the record.
8. In fact, there is no explanation at all as to how the Claimant and the legal counsel got in touch with each other after the dismissal of the Cause.
9. That disclosure was of materiality as any diligent party ought to follow up the progress on his/her case with the legal representative on record.
10. Despite the Respondent not opposing the motion dated 15 December 2015 at the submissions stage, the Court declines the invitation and dismisses the same with no order as to costs.
Delivered, dated and signed in Nakuru on this 11th day of March 2016.
Radido Stephen
Judge
Appearances
For Claimant Mr. Kimatta instructed by Kimatta & Co. Advocates
For Respondent Mr. Biko instructed by Robson Harris & Co. Advocates
Court Assistant Nixon