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ELRCDismissedCause No. 262 of 2013· [2016] KEELRC 205 (KLR)

Samson Arap Bii & 9 others v Benard Kiplangat Kilele & 2 others [2016] KEELRC 205 (KLR)

Employment and Labour Relations Court at Nakuru
14 October 2016
RSRadido Stephen
1,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a dismissed application because the applicant delayed six months and failed to give the full, precise story behind the delay.

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, Judge) disposed of an application filed on 6 May 2016 by Lawrence Karani Silas, a proposed interested party, seeking reinstatement of his motion filed on 21 October 2015 which had sought enjoinder as a third party in the Cause and the setting aside of a consent order made on 20 May 2014. That motion had been dismissed suo moto on 30 November 2015 when the applicant failed to attend court. The underlying Cause, filed in August 2013 by ten claimants against the respondents trading as North Njoro Farm, alleges breach of employment contract, and has been beset by successive amendments, interlocutory applications and preliminary objections. The Court held that inordinate delay is a matter of context and that a delay of about six months in seeking reinstatement, explained only by an advocate's failure to diarise the hearing date and a later discovery of the dismissal upon the applicant's inquiries, required full disclosure of the circumstances. Because the applicant did not disclose the exact date the inquiries were made - a disclosure the Court considered material and necessary to the exercise of its discretion - the reinstatement application was dismissed. The Court noted the applicant retained other legal options, including asserting proprietorship interests in the proper forum. Observing that the flood of applications risked obfuscating the real issues, the Court directed that Agreed Issues be filed within 30 days, that all pending application issues be canvassed at the merits hearing, and fixed a mention on 25 November 2016. Costs of the application were awarded to the Claimants and Respondents.

Key legal issues

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01

Whether the delay of about 6 months in seeking reinstatement of a dismissed application was excusable

Holding

The application failed because the applicant did not disclose the exact date the inquiries revealing the dismissal were made, which was material to the exercise of the Court's discretion

Reasoning

The Court acknowledged the settled principles governing reinstatement applications but found the applicant's explanation deficient. The advocate's failure to diarise was not deliberate, yet the applicant took no action for about 6 months and did not disclose when exactly the dismissal was discovered. That omission was held material and, on that singular ground, the application was dismissed, with a note that the applicant retained other legal options.

p. 3
02

Whether the proliferation of interlocutory applications was delaying the Cause

Holding

The Court observed that the plethora of applications suggested some parties were not interested in a hearing on the merits, and issued directions to ensure expeditious determination

Reasoning

The Court noted the history of repeated applications and preliminary objections since 2013 and cautioned that such a flood of applications could only obfuscate the real issues in dispute. To give effect to the objective for which the Court was established, it directed the filing of Agreed Issues within 30 days, inclusion of all pending application issues therein, and a mention date for further directions.

p. 3

Legal principles established

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  • Inordinate delay is a matter of context; even a delay of a day could be construed as inordinate
  • An applicant seeking discretionary relief for reinstatement after dismissal for non-attendance must give a full and material account, including precise dates, of the circumstances of the delay

Court orders

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  1. 1.The application seeking reinstatement of the motion filed on 21 October 2015 is dismissed
  2. 2.Agreed Issues to be filed in Court within 30 days from the date of the ruling
  3. 3.All issues raised through the pending applications be included in the Agreed Issues and be canvassed during the hearing on the merits of the Cause
  4. 4.Cause to be mentioned for further directions/hearing date on 25 November 2016
  5. 5.Costs of the application to the Claimants and Respondents
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (asserted in dispute; 3rd Respondent's preliminary objection contested the Court's jurisdiction)

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, "Samson Arap Bii & 9 others v Benard Kiplangat Kilele & 2 others [2016] KEELRC 205 (KLR)", Case Analysis (2016). Cause No. 262 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/205/eng@2016-10-14

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