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ELRCPartially AllowedNotice of Motion dated 21st February 2013 (claim number not stated in judgment)· [2013] KEELRC 314 (KLR)

JANET KHAYUMBI MWANZA V PAMMI THATTHI [2013] KEELRC 314 (KLR)

Industrial Court (Employment and Labour Relations Court)
24 April 2013
947 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court reinstated a claim dismissed for non-attendance, ruling a case cannot be dismissed when it was never listed for hearing.

What this practically means

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Executive summary

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By a Notice of Motion dated 21st February 2013, the Claimant sought reinstatement of her claim which had been dismissed for non-attendance on 21st March 2012, together with (in the terms of the motion) declarations of wrongful dismissal and terminal benefits. The Respondent opposed, arguing the application was incompetent as the affidavit was sworn by the Claimant's advocate, that the reasons for non-attendance were lame, that there was inordinate delay, and that it would be prejudiced. The Respondent cited seven High Court authorities on setting aside dismissals. The court perused the record and the online cause list and found that although the matter had been fixed for hearing, it was not cause listed before any court on the dismissal date, and there was no explanation how it was called before Hon. Justice Mukunya. The court held it was inappropriate to dismiss a case not listed for hearing. However, it found the Claimant's counsel guilty of delay in following up the matter and in applying to set aside the dismissal four months after learning of it. The court found both parties guilty of impropriety: the Respondent had no justification applying for dismissal of an unlisted case and failed to notify the Claimant's counsel of the dismissal. On balance, reinstatement was just and equitable. The court set aside the dismissal and reinstated the claim for hearing on merit, with no order for costs.

Key legal issues

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01

Whether the dismissal of the suit for non-attendance ought to be set aside

Holding

The dismissal was set aside because the case was not cause listed on the date it was dismissed

Reasoning

The court perused the record and the online cause list and found the matter was fixed for hearing on 21st March 2013 at 2.30 p.m. but was not listed before any court on 21st March 2012/2011. There was no explanation how the matter was called before Hon. Justice Mukunya when it was not in the cause list. The Respondent had no justification applying for dismissal of a case not cause listed and up for first hearing, and did not notify the Claimant's counsel of the dismissal.

p. 3
02

Whether the delay by the Claimant's counsel disentitled the Claimant from reinstatement

Holding

Counsel's delay was found to be improper but did not defeat the application

Reasoning

Counsel took no action to fix the case after confirming it was not listed, and delayed about four months after learning of the dismissal before applying to set aside. The court found both parties guilty of impropriety and, on balance, held that the Claimant should not suffer for the impropriety of both counsel.

p. 2

Legal principles established

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  • A court should not dismiss a case which was not cause listed for hearing before it
  • A claimant should not be made to suffer for the impropriety of both counsel where reinstatement is just and equitable

Court orders

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  1. 1.Set aside the orders of 21st March 2012 dismissing the Claimant's claim for non-attendance
  2. 2.Reinstate the case to be heard and determined on merit
  3. 3.No orders for costs
Jurisdiction invoked
Original employment and labour relations jurisdiction; reinstatement of claim dismissed for non-attendance

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, "JANET KHAYUMBI MWANZA V PAMMI THATTHI [2013] KEELRC 314 (KLR)", Case Analysis (2013). Notice of Motion dated 21st February 2013 (claim number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/314/eng@2013-04-24

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