[2019] KEELRC 2416 (KLR)
The court found that the claimant failed to provide a satisfactory explanation for the prolonged period of inaction between December 2015 and March 2018, as well as the subsequent four-month delay in filing the application to set aside the dismissal. The court held that the claimant did not demonstrate reasonable...
Source-derived case information.
- Citation
- [2019] KEELRC 2416 (KLR)
- Parties
- Claimant: Vincent Ngila Katilu; Respondent: Airtel Networks (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1847 of 2013
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- application dismissed with costs
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Dismissal for Non Attendance, Setting Aside Orders, Court Discretion, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Ngila Katilu
Claimant
Airtel Networks (K) Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the claimant has provided reasonable cause for the court to exercise its discretion to set aside the dismissal for non-attendance.
- 2 Whether the application to set aside the dismissal was brought without unreasonable delay.
Ratio Decidendi
The court found that the claimant failed to provide a satisfactory explanation for the prolonged period of inaction between December 2015 and March 2018, as well as the subsequent four-month delay in filing the application to set aside the dismissal. The court held that the claimant did not demonstrate reasonable cause or sufficient diligence to warrant the exercise of judicial discretion in his favour. The application was therefore dismissed, and the court declined to set aside the dismissal for non-attendance.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal for non-attendance is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 1847 OF 2013
VINCENT NGILA KATILU................................CLAIMANT
VERSUS
AIRTEL NETWORKS (K) LIMITED.........RESPONDENT
RULING
1. The suit was dismissed by Lady Justice Mbaru on 2nd March, 2017 when the same came up for hearing and only the respondent was present.
2. From the record, the matter has been adjourned on more than one occasion due to the absence of the claimant’s counsel. The claimants filed a notice to act in person on 24th July 2018 over one year after the dismissal of the suit and has concurrently therewith brought the present application.
3. In the affidavit in support of the application he says in essence that there was breakdown in communication between him and his advocate when the advocate handling the matter left the law firm of Rachier and Amolo.
4. The claimant further deponed that he complained to the office of the Ombudsman about the loss of the court file and the fact that the Registry had issued a date during vacation in August, 2016. In December, 2016 he visited the law firm of Rachier and Amolo and was informed that Mr Juma who was handling the matter had left the firm and one Miss Laila Abdullatiff was the one who took over the matter. Sometimes in March 2018 the claimant deponed that he visited the Registry and was informed the suit had been dismissed for nn-attendance.
5. The claimant does not seem to give a good account of what happened in December 2015 when he visited his advocates and March 2018 when he visited the Registry and was informed his case had been dismissed for non-attendance. This is a period of over one year and for a person who was actively following his case this does not sound plausible. Further, it took the claimant another four months to file the present application and no explanation has been given by the claimant for the delay. Besides the claimant has not come clear in his affidavit what steps he took to take up the matter of dismissal of this claim with his advocate before deciding to act in person.
6. This is a 2013 matter and the same was dismissed for non-attendance over one year ago. Setting aside an order of dismissal for non-attendance is discretionary. In order to exercise the discretion in favour of the applicant, he must give reasonable cause why the discretion should be exercised in his favour. Further the application must be brought without unreasonable delay. This has not happened here.
7. The court will therefore not exercise its discretion in favour of the applicant. The application is therefore dismissed with costs.
8. It is so ordered.
Dated at Nairobi this 25th day of January, 2019
Abuodha Jorum Nelson
Judge
Delivered this 25th day of January, 2019
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.
Abuodha J. N.
Judge