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ELRCDismissedPetition No. 2 of 2014 (Motion dated 21 July 2014)· [2014] KEELRC 1366 (KLR)

Theophilus K. Nzumbi & another v Waithaka Kiare Mbaya & Co. (Cpa (K) [2014] KEELRC 1366 (KLR)

Industrial Court of Kenya
17 October 2014
RSRadido Stephen
836 words in judgment
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The bottom line

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Kenya's Industrial Court refused to reinstate a dismissed employment appeal because the lawyer's excuse for missing the hearing had no supporting evidence.

What this practically means

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Executive summary

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The Appellants had sued Waithaka Kiarie Mbaya & Co. in the Chief Magistrate's Court in Civil Case No. 788 of 2003 for wrongful termination, seeking terminal benefits and general damages; the suit was dismissed on 16 November 2010. They filed a Memorandum of Appeal in the High Court on 16 December 2010, and the appeal was subsequently placed before the Industrial Court following directions by Mshila J. When the appeal was called on 15 July 2014 there was no representation for the Appellants, and the Court dismissed the appeal with costs for want of appearance. The same day, the Appellants were directed to file a formal application to reinstate the appeal, which they did by a motion dated 21 July 2014. The Respondent filed Grounds of Opposition, arguing the Appellants had not demonstrated they were before Mshila J on the material date, that the appeal was defective for non-conformity with rule 8 of the Industrial Court (Procedure) Rules, 2010, and that reinstatement would serve no purpose. Radido J observed that the Court had previously encouraged the parties to negotiate a compromise, shifting the duty to them. In any event, on the merits, the reinstatement application failed: the Appellants' advocate deposed that he was before Mshila J on 15 July 2014 but produced no cause list or extract of proceedings to verify this. The rule 8 objection was held immaterial, as the appeal was initially filed in the High Court under the rules applicable there. The motion dated 21 July 2014 was dismissed with costs to the Respondent.

Key legal issues

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01

Sufficient reasons for reinstatement of an appeal dismissed for non-appearance

Holding

The reinstatement application failed because the Appellants' advocate's claim to have been before Mshila J on 15 July 2014 was unverified by evidence.

Reasoning

The Appellants' advocate deposed that he was before Mshila J on the material date, but produced no cause list or extract of proceedings to substantiate the deposition. Without such verification, the Court could not accept that a valid reason existed for the absence, and the motion lacked merit.

p. 2
02

Conformity of the appeal with rule 8 of the Industrial Court (Procedure) Rules, 2010

Holding

The rule 8 objection was immaterial because the appeal was initially filed in the High Court under High Court rules.

Reasoning

The Respondent argued the appeal did not conform to rule 8 of the Industrial Court (Procedure) Rules, 2010. The Court held the format objection was not material because the appeal originated in the High Court pursuant to the rules applicable there, and only later moved to the Industrial Court.

p. 2

Legal principles established

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  • A party seeking reinstatement of an appeal dismissed for non-appearance must adduce evidence sufficient to explain the absence, such as the cause list or proceedings of the court on the material date.

Court orders

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  1. 1.The motion dated 21 July 2014 seeking reinstatement of the appeal is dismissed for lack of merit and failure to give sufficient reasons to explain the Appellants' advocate's absence
  2. 2.Costs of the motion awarded to the Respondent

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010rule 8
On appeal from
High Court (appeal against Chief Magistrate's Court Civil Case No. 788 of 2003)
Memorandum of Appeal filed 16 December 2010
Jurisdiction invoked
Appeal transferred to the Industrial Court pursuant to its procedural rules; motion for reinstatement of an appeal dismissed for non-appearance

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, "Theophilus K. Nzumbi & another v Waithaka Kiare Mbaya & Co. (Cpa (K) [2014] KEELRC 1366 (KLR)", Case Analysis (2014). Petition No. 2 of 2014 (Motion dated 21 July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1366/eng@2014-10-17

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