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ELRCDismissedNot stated in the judgment copy· [2015] KEELRC 1072 (KLR)
Peter Ocholi v Chairman, B.O.M. Afraha High School [2015] KEELRC 1072 (KLR)
Employment and Labour Relations Court of Kenya at Nakuru
15 May 2015
543 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Claimant moved the Employment and Labour Relations Court at Nakuru by a motion dated 26 February 2015 seeking reinstatement of his suit, which had been dismissed on a notice to show cause after neither party attended a mention. The Claimant advanced three reasons: directions had not been taken; the cause was not listed on 2 February 2015 and his Advocate expected a directions date; and he was desirous of prosecuting the cause. The Respondent opposed the application through a replying affidavit of Fredrick Mbuthia and cited Shah v Mbogo & Another (1967) EA 116. The Court noted that the Claimant did not deny service of the notice to show cause and that he had himself served the Respondent with a mention notice for the return date, demonstrating full awareness. His Advocate offered no explanation for non-attendance, and the assertion in submissions that his clerk was in court, unsupported by any affidavit evidence, was rejected as an afterthought. The Court held that reinstatement is a discretionary remedy to be exercised judiciously, not arbitrarily, requiring sufficient reasons and honest disclosure, and that advocates bear a professional duty to attend court even for mentions or arrange colleague representation in good time. The Court declined to exercise its discretion and dismissed the motion with costs to the Respondent on 15 May 2015.
Key legal issues
#01
Whether reinstatement of a suit dismissed for non-attendance was warranted
Holding
Reinstatement refused because the Claimant, though aware of the notice to show cause, gave no explanation for non-attendance
Reasoning
The Claimant was served with the notice to show cause and even served the Respondent with a mention notice for the same date, showing awareness. No explanation was offered for the Advocate's absence. A factual assertion made only in submissions (that the clerk was in court) was not deposed to and was rejected as an afterthought. Discretion must be exercised judiciously and requires honest disclosure.
p. 2
Legal principles established
#- A discretionary order such as reinstatement should be exercised judiciously, not arbitrarily, and requires sufficient reasons and honest disclosure of facts
- Advocates have a professional duty to attend court even for mentions, or to arrange representation by colleagues in good time
Court orders
#- 1.The motion dated 26 February 2015 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; inherent/discretionary power to reinstate a suit dismissed on a notice to show cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Ocholi v Chairman, B.O.M. Afraha High School [2015] KEELRC 1072 (KLR)", Case Analysis (2015). Not stated in the judgment copy. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1072/eng@2015-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.