Mary Wanjiku Muchina v Riverdale Blooms Limited [2015] KEELRC 1237 (KLR)
The bottom line
#A Kenyan employment court reinstated a suit dismissed for non-attendance, but only if the claimant paid costs within seven days.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to diarise a mention date by a clerk constitutes excusable mistake justifying setting aside dismissal
It is not, by itself, sufficient excuse where the clerk has not been named and has given no explanation, but the fact the dismissal occurred at a mention date and not a hearing date weighs in the applicant's favour
The court accepted that the discretion to set aside exists to prevent injustice from excusable mistakes, but held that an excusable mistake must be explained. The clerk who allegedly failed to diarise was not named and gave no explanation. However, because the suit was dismissed at a mention date, not a hearing date, and counsel was not expected to give explanations, the court found merit in the application and reinstated the suit on terms including thrown away costs.
Legal principles established
#- A judge's discretion to set aside ex parte orders is wide and unfettered, exercised only on such terms as may be just, with the main concern being to do justice to the parties
- An excusable mistake or error can only be ascertained through an explanation given, and failure by an unnamed clerk without explanation is not sufficient excuse
- The discretion to set aside an ex parte order is meant to ensure a litigant does not suffer injustice or hardship from an excusable mistake
Court orders
#- 1.The suit dismissed on 22nd July 2014 for non-attendance is reinstated on terms
- 2.The Claimant/Applicant to pay the Respondent's counsel Kshs. 15,000/- being thrown away costs plus the Kshs. 5,000/- ordered by the Court on 16th June 2014
- 3.The sums to be paid within 7 days failing which the Application stands dismissed with costs to the Respondent
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution cited by the Claimant; discretionary jurisdiction to set aside ex parte orders under the rules of procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wanjiku Muchina v Riverdale Blooms Limited [2015] KEELRC 1237 (KLR)", Case Analysis (2015). Cause No 1745 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1237/eng@2015-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.