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Court of AppealPartially AllowedCivil Application E185 of 2020· [2022] KECA 379 (KLR)

Director General, National Employment Authority v Al Hujra Agencies Limited

Court of Appeal
4 March 2022
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated a case dismissed for non-attendance, confirming that a missed hearing can be fixed if you act fast and explain why.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a Notice of Motion dated 6th December, 2021 by the Director General, National Employment Authority, seeking reinstatement of its Notice of Motion dated 7th June, 2021, which a differently constituted bench (Asike-Makhandia, J. Mohammed and Kantai, JJ.A.) had dismissed for non-attendance on 29th November, 2021, with no order as to costs. The applicant explained that its email address had been misquoted in the electronic service of the hearing notice by the Deputy Registrar, so its non-attendance was not deliberate. The court identified two prerequisites: filing within the mandatory thirty-day period in Rule 56(4) of the Court of Appeal Rules, and satisfaction of the substantive threshold for reinstatement. It found the timeline met and, applying the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act and Articles 50(1) and 159(2)(a), (e) of the Constitution, accepted the uncontroverted explanation of a wrong email address as a reasonable and plausible reason for non-attendance, finding no prejudice to the respondent. The court granted prayers 2, 3 and 4, varying or rescinding the dismissal order, reinstating the application for urgent hearing, and directing that costs of the reinstatement application abide its outcome. As a binding appellate decision, it affirms that dismissal for non-attendance is a draconian order to be employed sparingly and that a reasonable explanation for default suffices for reinstatement.

Key legal issues

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01

Timeliness under Rule 56(4)

Holding

The application dated 6th December, 2021, following a dismissal on 29th November, 2021, satisfied the mandatory thirty-day requirement.

Reasoning

The court treated the word 'shall' in Rule 56(4) as making the thirty-day period mandatory. Comparing the date of the dismissal order with the date of the reinstatement application, it found the application was presented well within the timeline, satisfying the first prerequisite.

p. 3
02

Sufficient cause for non-attendance

Holding

An uncontroverted assertion that the registry served the hearing notice on a misquoted email address constituted a reasonable and plausible explanation for non-attendance.

Reasoning

The applicant exhibited the hearing notice bearing an allegedly wrong email address and gave the correct address, through which it later received notice of the reinstatement application and attended. Neither the Deputy Registrar nor the respondent controverted this, so the court accepted it as sufficient cause and found no prejudice to the respondent.

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Overriding objective and fair hearing

Holding

Articles 50(1) and 159(2)(a), (e) and sections 3A and 3B of the Appellate Jurisdiction Act mandate courts to act justly, disfavour procedural technicalities, and grant latitude for substantive justice.

Reasoning

The court framed the constitutional and statutory foundation for its discretion: the right to a hearing is a valued, constitutionally entrenched right; Article 159's jurisdiction is unfettered where technicalities impede justice; and the overriding objective mandates the court to act justly and fairly with greater latitude for the ends of justice.

p. 3

Legal principles established

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  • An application to restore an application dismissed for non-attendance must be filed within thirty days of the dismissal order, and the timeline in Rule 56(4) is mandatory.
  • To succeed on reinstatement, an applicant must show both compliance with the Rule 56(4) timeline and a threshold basis for the exercise of the court's discretion.
  • The right to a hearing is constitutionally entrenched and can only be withheld in exceptional circumstances.
  • Dismissal for non-attendance is a draconian order to be employed sparingly.

Court orders

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  1. 1.Prayers 2, 3 and 4 of the application granted as prayed, namely variation or rescission of the orders of 29th November, 2021, reinstatement of the applicant's Notice of Motion dated 7th June, 2021, and its urgent re-hearing
  2. 2.Costs of the application to abide the outcome of the reinstated application
On appeal from
Court of Appeal
Nairobi Civil Application No. E185 of 2021
Jurisdiction invoked
Articles 50(1), 159(2)(a), (e) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 47, 56(3), (4) and 57(2) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Director General, National Employment Authority v Al Hujra Agencies Limited", Case Analysis (2022). Civil Application E185 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/379/eng@2022-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.