[2015] KEELRC 1072 (KLR)
The court found that the claimant was aware of the notice to show cause and the return date but failed to attend or provide any credible explanation for the absence. The assertion that the claimant's clerk was present was not supported by affidavit evidence and was deemed an afterthought. The court held that the...
Source-derived case information.
- Citation
- [2015] KEELRC 1072 (KLR)
- Parties
- Claimant: Peter Ocholi; Respondent: The Chairman, B.O.M. Afraha High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 593 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Reinstate Dismissed Suit
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Discretion, Show Cause Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ocholi
Claimant
The Chairman, B.O.M. Afraha High School
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Reinstate Dismissed Suit
Legal Issues
- 1 Whether the claimant has provided sufficient reason for non-attendance on the return date for the notice to show cause.
- 2 Whether the court should exercise its discretion to reinstate a suit dismissed for non-attendance.
Ratio Decidendi
The court found that the claimant was aware of the notice to show cause and the return date but failed to attend or provide any credible explanation for the absence. The assertion that the claimant's clerk was present was not supported by affidavit evidence and was deemed an afterthought. The court held that the claimant did not tender sufficient reasons or make an honest disclosure to justify the exercise of discretion in his favour. Consequently, the court declined to reinstate the suit, emphasizing the need for parties and their advocates to take their professional duties seriously and to provide adequate explanations when seeking discretionary relief.
Court Disposition
application dismissed
Orders
- The motion dated 26 February 2015 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 593 OF 2014
PETER OCHOLI CLAIMANT
V
THE CHAIRMAN, B.O.M. AFRAHA HIGH SCHOOL RESPONDENT
RULING
Before Court is a motion dated 26 February 2015 by the Claimant seeking
1…
2. THAT this honourable court be pleased to reinstate this suit which was dismissed on a notice to show cause.
On 17 November 2014, the Claimant appeared in the Court’s registry and fixed the Cause for mention on 26 January 2015.
The Court did not sit on 26 January 2015 and a general notice was issued that the Cause would be mentioned on 2 February 2015. None of the parties attended Court on this latter day, and the Court directed that a notice to show cause why suit should not be dismissed be issued. Return date was set for 13 February 2015.
On 13 February 2015, only the Respondent was in attendance in response to the show cause notice. The Court dismissed the suit as a consequence, hence the present application.
Among the reasons advanced by the Claimant in seeking to reinstate the Cause are that, directions had not been taken; that the Cause was not cause listed on 2 February 2015 and that his Advocate thought it was coming up for directions, and that he is desirous of prosecuting the Cause.
The Respondent opposed the application and relied on a replying affidavit of one, Fredrick Mbuthia. The authority of Shah v Mbogo & Another(1967) EA 116 was cited.
The Claimant has not denied that he was served with the show cause notice which had a return date of 13 March 2015.
The Claimant did not attend Court on 13 March 2015. That the Claimant was aware of the notice to show cause is underscored by the fact that in addition to the notice which was served by the Court, he further went ahead and served the Respondent with a Mention Notice for 13 March 2015.
With all the information and knowledge, the Claimant’s Advocate has not explained why he did not attend Court on 13 March 2015.
In submissions in support of the motion, Mr. Simiyu stated that his Clerk was in Court on 13 March 2015. This piece of evidence should have been deposed to in the supporting affidavit but was not.
In the view of the Court, this submission was an afterthought.
The order sought by the Claimant is discretionary and like any other discretionary power, it should be exercised judiciously and not arbitrarily. A party seeking such order should therefore tender sufficient reasons and make honest disclosure of the facts within his knowledge. The Claimant has not even attempted to explain why there was no representation/attendance on his part on 13 March 2015.
Advocates have a professional duty to attend Court even during mentions and if not able to attend, suitable arrangements for representation by colleagues should be arranged in good time.
With the failure to explain the absence, the Court declines to exercise its discretion to reinstate the Cause.
The motion dated 26 February 2015 is therefore dismissed with costs to the Respondent.
Delivered, dated and signed in Nakuru on this 15th day of May 2015.
Radido Stephen
Judge
Appearances
For Claimant Mr. Simiyu instructed by Simiyu & Co. Advocates
For Respondent Mr. Mburu instructed by Rodi, Orege & Co. Advocates
Nixon Court Assistant