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ELRCDismissedCause No 225 of 2014· [2015] KEELRC 913 (KLR)

Edward Koli v Attorney General & another [2015] KEELRC 913 (KLR)

Employment and Labour Relations Court of Kenya
19 June 2015
RSRadido Stephen
739 words in judgment
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The bottom line

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A Kenyan employment claim dismissed for inactivity stayed dismissed because the claimant failed to fully disclose facts when asking the court to revive it.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (Radido Stephen, J) concerned a motion dated 1 April 2015 in an employment cause originally filed before the Eldoret High Court in 2005 and transferred to the ELRC on 11 June 2014. After repeated mentions at which neither party nor counsel attended, the Court dismissed the suit on 28 November 2014 following the issuance of a show cause notice. The Claimant, whose advocates on record had received the dismissal notice, filed the motion through new advocates (Gichuki Gashuki & Co. Advocates) seeking reinstatement of the Cause, essentially seeking setting aside of the dismissal order, on grounds of financial difficulties, loss of his phone, mistake of his former advocates, and absence of prejudice to the Respondent. The Respondent, though having had counsel present when the hearing date was fixed, was not represented at the hearing. The Court held that setting aside and/or reinstating a dismissed suit is a discretionary power to be exercised judicially on the material placed before it, not arbitrarily or capriciously. It emphasised that retained advocates have a professional obligation to attend Court as officers of the Court. Finding that the Claimant had not made candid disclosure of relevant facts, had not placed sufficient material before the Court, and was not without other effective remedy, the Court refused to exercise its discretion in his favour and dismissed the motion with no order as to costs.

Key legal issues

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01

Whether the Court should exercise its discretion to set aside the dismissal of the suit and reinstate the Cause

Holding

The Court declined to exercise its discretion in the Claimant's favour, finding he had not placed sufficient material before the Court and had not made candid disclosure of all relevant facts; the motion was dismissed with no order as to costs.

Reasoning

The Court found that the Claimant's former advocates on record had received the dismissal notice yet failed to attend Court, breaching their professional obligation as officers of the Court. The Claimant did not state when he lost his phone or what efforts he made to contact his advocates, amounting to a lack of candid disclosure of relevant facts. The Court also noted that it had been prompting the Claimant to prosecute his case. The discretion to set aside and/or reinstate a dismissed suit must be exercised on the material placed before the Court and not arbitrarily or capriciously. Finding the material insufficient, and noting the Claimant has other effective remedies, the Court refused to exercise its discretion.

p. 2

Legal principles established

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  • Once an advocate has been retained, he has a professional obligation to attend Court when required, whether instructed or not, as an officer of the Court.
  • Setting aside and/or reinstating a suit after dismissal is a discretionary power that must be exercised on the material placed before the Court, and not arbitrarily or capriciously.

Court orders

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  1. 1.The Court refused to exercise its discretion as sought by the Claimant
  2. 2.The motion dated 1 April 2015 was dismissed with no order as to costs
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC; cause transferred from the High Court, Eldoret to this Court on 11 June 2014 pursuant to Article 162(2) of the Constitution establishing courts with the status of the High Court to hear employment and labour relations disputes

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, "Edward Koli v Attorney General & another [2015] KEELRC 913 (KLR)", Case Analysis (2015). Cause No 225 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/913/eng@2015-06-19

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