[2018] KEELRC 928 (KLR)
The court found that the delay in prosecuting the matter was wholly attributable to the applicant's advocate and not the applicant himself. Applying the overriding objective of ensuring a fair hearing and the principle that clients should not be penalized for their advocate's mistakes, the court exercised its...
Source-derived case information.
- Citation
- [2018] KEELRC 928 (KLR)
- Parties
- Applicant: Samuel Omondi Adera; Respondent: Sukari Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 295 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal granted; suit reinstated on terms.
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Advocate Negligence, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Omondi Adera
Applicant
Sukari Industries Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the delay in prosecuting the matter was attributable to the applicant or his advocate.
- 3 Whether the applicant should be penalized for the mistakes of his advocate.
Ratio Decidendi
The court found that the delay in prosecuting the matter was wholly attributable to the applicant's advocate and not the applicant himself. Applying the overriding objective of ensuring a fair hearing and the principle that clients should not be penalized for their advocate's mistakes, the court exercised its discretion to set aside the dismissal order. The suit was reinstated on condition that the claimant prosecutes the matter on the next hearing date, failing which the suit would be dismissed.
Court Disposition
Application to set aside dismissal granted; suit reinstated on terms.
Orders
- The order dismissing the suit for want of prosecution is set aside.
- The suit is reinstated and to be set down for hearing on a priority basis.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 295 OF 2013
(Before Hon. Justice Mathews N. Nduma)
SAMUEL OMONDI ADERA.......................CLAIMANT
VERSUS
SUKARI INDUSTRIES LIMITED.........RESPONDENT
R U L I N G
1. The court has considered the application to set aside the order of the court by Maureen Onyango J. to dismiss the suit for want of prosecution issued on 16th October, 2017. The court has considered the grounds of opposition filed by the Respondent on 19th July, 2018 and the written submissions by the party and is satisfied that the delay to prosecute the matter was wholly caused by the advocate of the Applicant and not by the Applicant himself.
2. The court has taken into account the overriding objective of giving a fair hearing to all persons in terms of Article 159 of the constitution and the general principle not to visit the mistakes of an advocate on the client.
3. Accordingly, the court exercises, its discretion to set aside the order of the court to dismiss the matter for want of prosecution and has reinstated the suit on the following terms:-
(i) The suit is to be set down for hearing on the date of this ruling on priority basis.
(ii) The Claimant is put on terms to prosecute the matter on the first date to be given. Any default on the part of the Claimant would lead to dismissal of the suit.
(iii) Costs in the cause.
Dated and Signed in Kisumu this 11th day of October, 2018
Mathews N. Nduma
Judge
Appearances
Claimant in Person
Ogejo, Olendo & Co. Advocates for the Respondent
Chrispo – Court Clerk