[2018] KEELRC 1064 (KLR)
The court found that both the claimant and his counsel were late for the hearing despite being aware of the court's sitting time. The suit had previously been dismissed for want of prosecution, and this was the second such dismissal. The court concluded that the claimant was not diligent and was seeking to delay or...
Source-derived case information.
- Citation
- [2018] KEELRC 1064 (KLR)
- Parties
- Applicant: Shadrack Mwirigi Baariu; Respondent: Marania Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 94 of 2013
- Procedural Posture
- Reinstatement Application / Ruling on Application for Reinstatement After Dismissal
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Judicial Discretion, Ex Parte Judgment, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Mwirigi Baariu
Applicant
Marania Limited
Respondent
Procedural Posture
Reinstatement Application / Ruling on Application for Reinstatement After Dismissal
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the applicant has provided sufficient cause for non-attendance at the hearing.
- 3 Whether the court should exercise its discretion to set aside the dismissal in the circumstances.
Ratio Decidendi
The court found that both the claimant and his counsel were late for the hearing despite being aware of the court's sitting time. The suit had previously been dismissed for want of prosecution, and this was the second such dismissal. The court concluded that the claimant was not diligent and was seeking to delay or obstruct the determination of the matter. Applying the principles from Shah v Mbogo and Patel v E.A. Cargo Handling Services Ltd, the court held that its discretion to set aside a dismissal should not be exercised in favour of a party who is not keen on prosecuting the suit and is attempting to delay justice. Therefore, the application for reinstatement was dismissed as devoid...
Court Disposition
application dismissed
Orders
- The notice of motion for reinstatement is dismissed.
- The suit remains dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 94 OF 2013
SHADRACK MWIRIGI BAARIU.....................CLAIMANT
VERSUS
MARANIA LIMITED....................................RESPONDENT
RULING
1. The Claimant/Applicant seeks the reinstatement of his suit which was dismissed on 7th March 2018 at Meru. The matter was called out and there was no representative for the Claimant and neither was the Claimant in court. The Claimant’s motion is to the effect that the case was called out and when his counsel walked in at 9. 09 am, he found the matter having been dismissed. The Respondent is opposed to the reinstatement.
2. In matters of this nature, the principles enunciated in a long line of precedents is worth mentioning. In the case of Shah vMbogo (1967) EA 166 the Court of Appeal held that the principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are twin. Firstly, there are no limits or restrictions on the judge’s discretion to set aside except that if the judge does vary the judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. Secondly, this discretion to set aside is intended to be so exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. This was further reiterated by the Court of Appeal in the case of Patel v E.A. Cargo Handling Services Ltd (1974) EA 75and myriad other notable cases too numerous to enumerate.
3. The Claimant is alleged to have walked out to call his lawyer. The counsel for the Claimant was late and so was his client as far as the court record goes. They were well aware of the time courts sit. The matter was dismissed procedurally. Prior to the hearing scheduled at Meru, the suit was scheduled for dismissal for want of prosecution and notice to show cause issued before Ongaya J. on 16th June 2016 and the suit was indeed dismissed on 7th October 2016 for want of prosecution. This is the second time the suit is being dismissed. The Claimant is clearly not keen on proceeding with the suit and the Claimant satisfies the description of a person seeking to delay or otherwise deliberately obstruct the determination of the matter. The suit is not fit for readmission and it stands dismissed. The notice of motion is devoid of merit and is accordingly dismissed.
It is so ordered.
Dated and delivered at Nyeri this 28th day of September 2018
Nzioki wa Makau
JUDGE