Aggrey Akivaga Ngaira v Bob Morgan Services Limited [2015] KEELRC 704 (KLR)

Employment and Labour Relations Court

27 July 2015

NMNzioki wa Makau

1,617 words in judgment

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The bottom line

A Kenyan employment court refused to reinstate a suit dismissed for non-attendance because the claimant showed no genuine mistake for missing the hearing.

What this practically means

Executive summary

The Claimant sought, by Notice of Motion dated 9th April 2015, to set aside the dismissal of his suit on 18th March 2015 for non-attendance, asserting he had been in court and that his counsel was engaged in another matter (ELC 1140 of 2014, High Court) and had sought audience in chambers after finding the matter dismissed. The Respondent opposed, deposing through Peter M. Wambua that the hearing date was taken by consent, that the Claimant was present at the callover and confirmed readiness, that neither the Claimant nor his counsel appeared at 11.30am, and that the application came almost a month late. Applying Patel v EA Cargo Handling Services Ltd and CMC Holdings v Nzioki, the court held that setting aside requires an excusable mistake, inadvertence, accident or error. It found none: the Claimant knew the court and the time, and both he and his counsel were plainly late or disinterested. The court made adverse credibility findings, describing as dishonest the Claimant's failure to state the exact time of his return and as an outright lie the assertion that the court had closed at 11.30am, noting courts sit in open court and do not see parties in chambers. It also criticised counsel for not mentioning the diary conflict at the callover or instructing someone to hold his brief. The application was dismissed with costs to the Respondent.

Key legal issues

Whether the Claimant's non-attendance at the fixed hearing time was an excusable mistake entitling setting aside of the dismissal

Holding

No - the Claimant and his counsel knew the court and the time, and were plainly late or disinterested; no mistake, inadvertence or error was demonstrated

Reasoning

The court applied Patel v EA Cargo Handling Services Ltd and CMC Holdings v Nzioki, which require an excusable mistake for setting aside. The Claimant had been present at the callover and knew the 11.30am setting. His failure to state the exact time of return, the implausible claim that the court was closed at 11.30am, and counsel's failure to send someone to hold his brief or explain the conflict to the court showed the absence was not inadvertent. The court found the explanation dishonest.

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Whether the discretion to set aside should nonetheless be exercised in the Claimant's favour

Holding

No - the Claimant raised no grounds entitling him to the exercise of the discretion, and the application was dismissed with costs

Reasoning

The Court accepted that setting aside is discretionary and must be done on just terms, but found the Claimant had not demonstrated any excusable mistake, inadvertence or error as required by the CMC Holdings principles. The allegations about counsel being in another matter were not raised at the callover, no holdist was instructed, and the delay of nearly a month compounded the lack of merit.

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Legal principles established

A court's discretion to set aside a dismissal or ex parte judgment is wide, but must be exercised on terms that are just, and the applicant must demonstrate an excusable mistake, inadvertence, accident or error

Court orders

1.The Notice of Motion dated 9th April 2015 is dismissed
2.Costs of the application to the Respondent

Authorities

Cases cited (2)

Patel v EA Cargo Handling Services Ltd
[1974] EA 75
CMC Holdings v Nzioki
[2004] 1 KLR 173

Jurisdiction invoked: Inherent discretion to set aside dismissal of suit for non-attendance, exercised under the Court's rules of procedure

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Aggrey Akivaga Ngaira v Bob Morgan Services Limited [2015] KEELRC 704 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/704/eng@2015-07-27

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