[2019] KEELRC 118 (KLR)
The court found that the claimant and his advocate failed to provide a sufficient explanation for their non-attendance at the mention on 7th March 2019 and for their failure to file written submissions within the time allowed. The court emphasized the need for parties to comply with court directions and orders, and...
Source-derived case information.
- Citation
- [2019] KEELRC 118 (KLR)
- Parties
- Applicant: Silvester Chengo; Respondent: Hatimi Joinery Works Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 350 of 2013
- Procedural Posture
- Employment Cause / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- application for reinstatement dismissed; file closed
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Reinstatement of Claim, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvester Chengo
Applicant
Hatimi Joinery Works Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the claimant's application for reinstatement of the dismissed claim should be granted.
- 2 Whether sufficient explanation was provided for failure to file submissions and attend court.
- 3 Whether the court should exercise discretion to re-open the claim after dismissal for want of prosecution.
Ratio Decidendi
The court found that the claimant and his advocate failed to provide a sufficient explanation for their non-attendance at the mention on 7th March 2019 and for their failure to file written submissions within the time allowed. The court emphasized the need for parties to comply with court directions and orders, and to assist in the expeditious disposal of cases as required by law and judicial policy. In the absence of any compelling reason or explanation for the delay and non-compliance, the court declined to exercise its discretion to reinstate the claim, upholding the dismissal for want of prosecution.
Court Disposition
application for reinstatement dismissed; file closed
Orders
- Claimant’s application filed on 10th May 2019 is rejected with no order on the costs.
- File is closed.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
CAUSE NUMBER 350 OF 2013
BETWEEN
SILVESTER CHENGO........................................CLAIMANT
VERSUS
HATIMI JOINERY WORKS LIMITED.......RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Hezron Gekonde & Company Advocates for the Claimant
Mburu Kariuki & Company, Advocates for the Respondent
_______________________________________________
RULING
1. This Claim was filed in the year 2013.
2. The Claimant seeks payment of leave, notice and wages, amounting to Kshs. 34,800. He also seeks compensation for unfair termination.
3. He has not prosecuted to completion, his small Claim, for over 6 years.
4. The Court ordered, on 4th February 2019, that the Claim is disposed of through Written Submissions, pursuant to Rule 21 of the E&LRC (Procedure) Rules 2016.
5. Parties were to file and exchange Submissions within 28 days.
6. At the end of 28 days, the Claim was mentioned on 7th March 2019.
7. None of the Parties appeared.
8. None had filed any Submissions.
9. The Court dismissed the Claim on 7th March 2019, and closed its file.
10. 2 Months later, on 10th May 2019, the Claimant filed an Application, asking the Court to reinstate his Claim.
11. The Application, supported by the Affidavit of Claimant’s Advocate, Hezron Gekonde, sworn on 8th May 2019 is the subject matter of today’s Ruling.
12. Mr. Gekonde explains that on the date the Claim was slated for mention on 7th march 2019, he was held up at the ELC in Mombasa.
13. There is no explanation why he did not instruct another Advocate to hold his brief.
14. There is no explanation why the Parties did not file Submissions, within the reasonable time of 28 days given by the Court, such as would have enabled the Court to proceed to prepare Judgment, even in the absence of the Parties on 7th March 2019.
15. The Court must be able to regulate and manage its proceedings in accordance with the E&LRC Act, and the Procedural Rules made under this Act.
16. Parties on their part, shall assist the Court to further the principal objective of the E&LRC Act, and to this effect, participate in the proceedings of the Court, and to comply with directions and orders of the Court, as required under Section 3 of E&LRC Act.
17. The Judiciary has in place a policy of expeditious disposal of Cases which is within the knowledge of both Parties. This Claim is one of the very few Claims, 5 years and older, which was still pending in this Court, as of the year 2019.
18. The Court declines to re-open this Claim.
IT IS ORDERED:-
a. Claimant’s application filed on 10th May 2019 is rejected with no order on the costs.
b. File is closed.
Dated and delivered at Mombasa this 5th day of December 2019.
James Rika
Judge