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ELRCDismissedNot stated in the judgment· [2013] KEELRC 780 (KLR)

David Kabori Rimberia v Summit Covelines Co Ltd & another [2013] KEELRC 780 (KLR)

Industrial Court of Kenya
27 September 2013
812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court dismissed a part-heard employment case after advocates sought an adjournment without giving reasons — showing courts punish delay severely.

What this practically means

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Executive summary

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This was a part-heard employment cause before the Industrial Court at Mombasa, presided over by Radido Stephen J. The judgment recounts a protracted procedural history: the cause was first listed before Chemmutut J in February 2012, transferred to Mombasa on the application of the Respondent before Nduma J in November 2012, and mentioned and adjourned on several occasions, ultimately proceeding part-heard with the Claimant testifying in June 2013. When the matter came up on 29 August 2013, advocates holding brief for the parties on record informed the court that the parties had agreed to take out the matter because the date was not convenient. The court rejected this approach, holding that diary management is a judicial function and that counsel's agreements must be brought to the court for directions. The date had been fixed in the presence of the advocates, who concurred on its suitability, and the holding-brief advocates offered no reasons for the alleged inconvenience or for the adjournment sought. Invoking Rule 22(b) & (c) of the Industrial Court (Procedure) Rules, 2010, which permits the court to proceed in the absence of a party who fails to appear without reasons, the judge refused the adjournment and directed the hearing to proceed at 2.30 pm. None of the advocates on record appeared. Noting that while the court should not visit injustice on litigants in a part-heard cause, the advocates on record had acted unprofessionally and in a dilatory manner, the court dismissed the Cause with no order as to costs. The judgment was delivered in open court in Mombasa on 27 September 2013.

Key legal issues

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01

Management of the court diary

Holding

Counsel cannot agree between themselves to take out a matter; the court manages its own diary and must sanction any adjournment arrangements

Reasoning

The parties' advocates had concurred on the suitability of the 29 August 2013 hearing date when it was fixed in their presence. Advocates holding brief later sought to take the matter out without any explanation. The court held that diary management is a judicial function and counsel's private agreements must be brought to the court for directions. This conduct was described as unprofessional and dilatory.

p. 1
02

Adjournment and hearing in absence of parties

Holding

Where no reasons are given for absence or inconvenience, the court may proceed under Rule 22(b) & (c) and, given the dilatory conduct of the advocates on record, dismissed the Cause

Reasoning

Rule 22(b) & (c) of the Industrial Court (Procedure) Rules, 2010 permits the court to proceed in the absence of a party who fails to appear without reasons, or where the reasons given would not prevent attendance. No reasons were advanced by the advocates holding brief. Although the court should not visit injustice on litigants in a part-heard cause, the advocates' unprofessional and dilatory conduct justified dismissal.

p. 2

Legal principles established

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  • It is the Court, not counsel, that manages its diary and any agreements by advocates must be brought to the Court for directions
  • An adjournment is discretionary and requires sufficient grounds
  • The Court may proceed in the absence of a party who fails to appear without reasons under Rule 22(b) & (c) of the Industrial Court (Procedure) Rules, 2010

Court orders

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  1. 1.The Cause is dismissed with no order as to costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 22(b) & (c)
Jurisdiction invoked
Industrial Court (Procedure) Rules, 2010, Rule 22(b) & (c)

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, "David Kabori Rimberia v Summit Covelines Co Ltd & another [2013] KEELRC 780 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/780/eng@2013-09-27

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