JANET KHAYUMBI MWANZA V PAMMI THATTHI [2013] KEELRC 314 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal of the suit for non-attendance ought to be set aside
The dismissal was set aside because the case was not cause listed on the date it was dismissed
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.
Whether the delay by the Claimant's counsel disentitled the Claimant from reinstatement
Counsel's delay was found to be improper but did not defeat the application
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.
Legal principles established
#- 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
#- 1.Set aside the orders of 21st March 2012 dismissing the Claimant's claim for non-attendance
- 2.Reinstate the case to be heard and determined on merit
- 3.No orders for costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; reinstatement of claim dismissed for non-attendance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.