[2021] KEELRC 887 (KLR)
The court found that the applicant failed to provide credible evidence of the alleged power surge or any other sufficient cause for non-appearance. The court noted that all parties waiting to be admitted to the virtual session had been admitted, and the 1st respondent's advocate had acted professionally by relaying...
Source-derived case information.
- Citation
- [2021] KEELRC 887 (KLR)
- Parties
- Applicant: Vincent Shinaka Muliro; Respondent: The Board of Trustees, National Social Security Fund; Respondent: The Managing Trustee/CEO, National Social Security Fund; Respondent: The Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition E099 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Set Aside Dismissal
- Outcome
- application dismissed with costs to the 1st respondent
- Judges
- AN Makau
- Legal Topics
- Reinstatement of Dismissed Application, Non Appearance of Counsel, Virtual Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Shinaka Muliro
Applicant
The Board of Trustees, National Social Security Fund
Respondent
The Managing Trustee/CEO, National Social Security Fund
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Set Aside Dismissal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant setting aside the dismissal of the application for non-appearance.
- 2 Whether the absence of the applicant or his counsel was justified by technical or other valid reasons.
Ratio Decidendi
The court found that the applicant failed to provide credible evidence of the alleged power surge or any other sufficient cause for non-appearance. The court noted that all parties waiting to be admitted to the virtual session had been admitted, and the 1st respondent's advocate had acted professionally by relaying the applicant's communication. The court concluded that the motion to set aside the dismissal was devoid of merit and appeared to be an afterthought. Consequently, the application was dismissed with costs to the 1st respondent.
Court Disposition
application dismissed with costs to the 1st respondent
Orders
- The Notice of Motion is dismissed with costs to the 1st respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
PETITION NO. E099 OF 2021
VINCENT SHINAKA MULIRO........................................PETITIONER/APPLICANT
VERSUS
THE BOARD OF TRUSTEES,
NATIONAL SOCIAL SECURITY FUND....................................1ST RESPONDENT
THE MANAGING TRUSTEE/CEO,
NATIONAL SOCIAL SECURITY FUND...................................2ND RESPONDENT
THE ATTORNEY GENERAL.....................................................3RD RESPONDENT
RULING
1. The long and short of the matter is that no merit is found in the Notice of Motion. The Court does recall the sequence of events on the material day when Mrs. Mbabu was courteous enough to advise the Court that the Petitioner’s advocate had reached out to her and informed her he was waiting to be admitted. The Court thereafter proceeded to confirm no one was in the lobby as all parties waiting to be admitted had been admitted after a brief break.
2. The matter was called out and in their absence was dismissed as no one appeared to prosecute the application. As no evidence of the alleged handicap has been adduced coupled with the fact that when Mr. Rotich appeared he did not notify the Court of a power surge. It would seem the current Motion is an afterthought and a belated attempt to bolt the stable doors after the horses have bolted out.
3. The fact that Mrs. Mbabu pointed out an issue that had been notified to her between the first and second sessions is clear indication she did the best she could as a professional and the absence of the Petitioner/Applicant cannot be laid at any one’s door other than their own. As such the Motion being devoid of merit is dismissed with costs to the 1st Respondent who was forced to file a response due to the misrepresentation the in the Motion.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF SEPTEMBER 2021
NZIOKI WA MAKAU
JUDGE