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ELRCDismissedNot stated in judgment· [2016] KEELRC 496 (KLR)

Eunice Mwanyalo v Kiprop Bundotich & 2 others [2016] KEELRC 496 (KLR)

Employment and Labour Relations Court
14 October 2016
JRJames Rika
330 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 reinstate an application seeking to delay payment of an award, holding the party gave no real evidence for missing the hearing.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa, per James Rika, Judge, dismissed the Respondent's application dated 22nd September 2016 seeking reinstatement of its earlier application dated 2nd September 2016. The earlier application had sought to vary agreed terms of payment of a Court Award delivered on 27th February 2015 directing the Respondent to pay the Claimant a total of US Dollars 26,500, so that payments would commence in January 2017. That application was dismissed on 22nd September 2016 when the Respondent and its Advocates failed to attend court. Mr. Omari, for the Respondent, explained that he was held up at the High Court and instructed Mr. Ratemo to hold his brief, but Mr. Ratemo was delayed in traffic and failed to do so, arguing the dismissed application raised fundamental issues and the Respondent should not be condemned unheard. Mr. Asewe for the Claimant countered that no details of the High Court case were given, no affidavit was sworn by Mr. Ratemo, and the application was designed to delay execution. The Court observed that the Award, delivered over a year earlier, remained wholly unsatisfied while the Respondent sought to begin payment only in January 2017. Finding no evidence of counsel's claimed engagements, and noting that urgency should have compelled personal attendance, the Court held the application had no merit and dismissed it with costs to the Claimant.

Key legal issues

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01

Whether the Respondent's explanation for non-attendance justified reinstatement of the dismissed application

Holding

The explanation was unsupported by evidence and the application lacked merit

Reasoning

The Court noted the Award had been delivered over a year earlier and remained unsatisfied, yet the Respondent sought to defer payments to January 2017. Counsel's claimed absence at the High Court lacked details, and no affidavit was sworn by Mr. Ratemo who allegedly failed to hold brief. Given the Certificate of Urgency, Mr. Omari should have attended personally. The application was seen as an attempt to delay execution.

p. 1

Legal principles established

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  • A party seeking reinstatement of an application dismissed for non-attendance must provide evidence justifying the absence, particularly where the underlying award remains unsatisfied

Court orders

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  1. 1.Application dated 22.9.2016 is dismissed with costs to the Claimant
Jurisdiction invoked
Not stated in judgment

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, "Eunice Mwanyalo v Kiprop Bundotich & 2 others [2016] KEELRC 496 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/496/eng@2016-10-14

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