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ELRCDismissedCause No. 106 of 2014 (Originally Nakuru High Court Civil Case No. 237 of 2007)· [2016] KEELRC 295 (KLR)

James Archimedes Gichana v Pyrethrum Board of Kenya & another [2016] KEELRC 295 (KLR)

Employment and Labour Relations Court
11 November 2016
RSRadido Stephen
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim was permanently lost because no one could explain why the claimant missed his hearing date, so courts require solid evidence before reinstating dismissed suits.

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) determined a motion dated 22 February 2016 by which the Claimant sought setting aside of an order of 19 February 2016 dismissing his Cause for non-attendance, and reinstatement of the claim for hearing on merit. The dismissal had followed an application by the Respondents' advocates after neither the Claimant nor his advocate attended Court on the date fixed for hearing. The Claimant attributed his non-attendance to a mistake: he understood the Cause was fixed for hearing on 17 December 2015 rather than 8 December 2015, and deponed that he and an advocate, Mr. Nyamwange, holding brief for Mr. Nyakundi attended on 17 December 2015 only to find the Cause was not in the cause list. Counsel for the Claimant urged the Court to exercise its discretion so the Claimant would not be shut out from a determination on the merits. The Respondents opposed, arguing the absence of an affidavit from the advocate who held brief when the hearing date was fixed, no evidence the Claimant attended Court on 17 December 2015, and lack of good faith. The Court cited Order 12 rule 13 of the Civil Procedure Rules and observed that the advocate holding brief bore a professional obligation to communicate the day's proceedings, yet there was no disclosure from him, and the Claimant did not disclose the registry official who allegedly gave him incorrect information. Finding the explanation insufficient, the Court dismissed the motion with costs to the Respondents.

Key legal issues

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01

Discretion to set aside dismissal of a suit under Order 12 rule 13 of the Civil Procedure Rules

Holding

The discretion exists but will not be exercised where the applicant fails to provide sufficient reasons for non-attendance; the Claimant's explanation was unsupported by evidence

Reasoning

Order 12 rule 13 permits dismissal where only the Defendant appears. The power to set aside is discretionary. The Claimant claimed he was told the hearing was on 17 December 2015, but did not disclose which registry official gave that information, nor did he adduce evidence from the advocate who held brief on the day the hearing date was fixed. The Court declined to speculate, concluding the explanation was insufficient, and dismissed the motion.

p. 3
02

Obligation of the advocate holding brief to communicate the hearing date

Holding

The advocate holding brief should communicate the outcome of proceedings to the instructing advocate; failure to disclose what transpired weighs against setting aside dismissal

Reasoning

The Court noted Mr. Nyamwange held brief for Mr. Nyakundi when the hearing date was fixed, but there was no disclosure of whether he communicated with the instructing advocate, and no affidavit from him explaining his understanding of the hearing date. That disclosure was relevant and material to the exercise of the Court's discretion in the Claimant's favour.

p. 2

Legal principles established

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  • The advocate who holds brief for the instructing advocate has a professional obligation to communicate the outcome of the day's proceedings, and a measure of disclosure from that advocate is material to the exercise of the discretion to set aside dismissal of a suit

Court orders

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  1. 1.The motion dated 22 February 2016 seeking to set aside the orders of 19 February 2016 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 13
Jurisdiction invoked
Inherent discretion to set aside dismissal of suit under Order 12 rule 13 of the Civil Procedure Rules

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, "James Archimedes Gichana v Pyrethrum Board of Kenya & another [2016] KEELRC 295 (KLR)", Case Analysis (2016). Cause No. 106 of 2014 (Originally Nakuru High Court Civil Case No. 237 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/295/eng@2016-11-11

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