[2019] KEELRC 88 (KLR)
The Court found that the Claimant's application was premised on the same grounds previously advanced and rejected in an earlier ruling. The Court held that merely rephrasing or embellishing previously rejected arguments does not constitute sufficient cause to set aside a dismissal order. The Court further determined...
Source-derived case information.
- Citation
- [2019] KEELRC 88 (KLR)
- Parties
- Applicant: Solomon Ngaruiya Ndungu; Respondent: Kirinyaga Construction (K) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 55 of 2016
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Cause, Review of Court Orders, Advocate Negligence, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Ngaruiya Ndungu
Applicant
Kirinyaga Construction (K) Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the Claimant has established sufficient grounds to set aside the dismissal order of 4 December 2018.
- 2 Whether the repeated applications constitute an abuse of court process.
- 3 Whether the Claimant has a remedy against his former advocate for alleged negligence.
Ratio Decidendi
The Court found that the Claimant's application was premised on the same grounds previously advanced and rejected in an earlier ruling. The Court held that merely rephrasing or embellishing previously rejected arguments does not constitute sufficient cause to set aside a dismissal order. The Court further determined that the repeated filing of applications on the same grounds amounts to an abuse of the court process. The appropriate remedy for the Claimant, if any, lies against the advocate who failed to inform him of the hearing date, not through repeated applications to the Court. Accordingly, the application was dismissed with costs to the Respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the dismissal order of 4 December 2018 is dismissed.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 55 OF 2016
SOLOMON NGARUIYA NDUNGU..............................CLAIMANT
v
KIRINYAGA CONSTRUCTION (K) LTD..............RESPONDENT
RULING NO. 3
1. The Cause herein was dismissed 4 December 2018.
2. On 7 February 2019, the Court dismissed an application by the Claimant seeking to have the dismissal order set aside and have the Cause reinstated because the Claimant’s advocate was not in Court to prosecute the application.
3. On the same day, the Claimant filed another application seeking orders reviewing the orders made earlier that day as well as orders reviewing and setting aside the dismissal order of 4 December 2018.
4. The Court dismissed the application on 8 March 2019 (Ruling No. 2) and the reasons are on record.
5. On 10 September 2019, the Claimant, now represented by a new firm of advocates, filed yet another application seeking orders setting aside the dismissal order of 4 December 2018.
6. The principal ground advanced was that the advocate then on record had failed to inform him (Claimant) about the hearing date.
7. The Claimant urged that he had an arguable case and that no prejudice would be occasioned to the Respondent if the orders sought were granted.
8. The Respondent resisted the application accusing the Claimant of inordinate delay and indolence, and that no justifiable reasons had been advanced.
9. The grounds advanced by the Claimant now are the very same reasons which the Court found insufficient in its Ruling No. 2 of 8 March 2019, only that now they have been embellished differently.
10. The Court finds the present application not only unmerited, but an abuse of the Court process as the grounds relied on were considered and rejected earlier.
11. In the view of the Court, it is not that the Claimant has no probable remedy against the advocates who failed him.
12. The application is dismissed with costs to the Respondent.
Delivered, dated and signed in Nairobi on this 29th day of November 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Mutanda instructed Gitonga Mureithi & Co. Advocates
For Respondent Mrs. Gitau instructed by Muchoki Kangata Njenga & Co. Advocates
Court Assistant Lindsey