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ELRCAllowedNotice of Motion dated 6th July 2016· [2017] KEELRC 1923 (KLR)

David Njoroge Njenga v Getrio Insurance Brokers Ltd [2017] KEELRC 1923 (KLR)

Employment and Labour Relations Court
27 January 2017
LNLINNET NDOLO
579 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 court reinstated a dismissed claim because the claimant was never properly served with the hearing notice.

What this practically means

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Executive summary

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The Claimant applied by Notice of Motion dated 6th July 2016 to set aside an order of 22nd April 2016 dismissing his suit for want of prosecution after neither party nor counsel attended court during the service week. Counsel for the Claimant, David Maina Nyamu, deponed in a supporting affidavit that his firm was never served with a hearing notice and only learned of the dismissal indirectly through the Respondent's Advocates, who had received a hearing notice on 17th May 2016. Counsel further showed that his firm had actively pursued the matter, including inviting the Respondent's Advocates to fix a mutually convenient hearing date in December 2015, when a process server attended the Registry and fixed the matter for hearing on 19th July 2016. The sole question framed by the court was whether the Claimant had made out a case for setting aside the dismissal. Reviewing the court file, the judge found a record of activity demonstrating the Claimant's intention to prosecute the claim, and noted that the court could not establish the mode and date of service of the hearing notice issued by the Deputy Registrar on 22nd March 2016, which corroborated the claim of non-service. The court held this was a proper case for setting aside the dismissal, set aside the order of 22nd April 2016, reinstated the claim for hearing on a priority basis, and directed that the costs of the application be in the cause. The judgment was delivered in open court at Nairobi on 27th January 2017 by Linnet Ndolo, Judge.

Key legal issues

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01

Setting aside dismissal for want of prosecution where hearing notice was allegedly not served

Holding

The dismissal order was set aside because the record showed an intention to prosecute and there was no proof of service of the hearing notice on the Claimant's counsel.

Reasoning

The court examined the court file and found prior steps taken by the Claimant to prosecute the claim, including fixing dates and corresponding with the Respondent. The record did not disclose the mode or date of service of the hearing notice, lending credence to counsel's assertion of non-service. Setting aside was therefore fair and in the interest of justice.

p. 2

Legal principles established

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  • Where the court cannot ascertain the mode and date of service of a hearing notice, an order dismissing a suit for non-attendance may properly be set aside.

Court orders

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  1. 1.The order made on 22nd April 2016 dismissing the Claimant's claim for want of prosecution is set aside
  2. 2.The Claimant's claim is reinstated for hearing on priority basis
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Inherent power of the court to set aside its own orders in the interest of justice

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, "David Njoroge Njenga v Getrio Insurance Brokers Ltd [2017] KEELRC 1923 (KLR)", Case Analysis (2017). Notice of Motion dated 6th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1923/eng@2017-01-27

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