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ELRCAllowedCause No 1033 of 2012· [2017] KEELRC 1925 (KLR)

John E. Kihumba Muya v Nairobi Institute of Business Studies Ltd [2017] KEELRC 1925 (KLR)

Employment and Labour Relations Court
20 January 2017
LNLinnet Ndolo
768 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court reinstated a worker's dismissed claim, ruling it would be unjust to punish him for delay the court itself had allowed.

What this practically means

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Executive summary

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The Claimant applied by notice of motion dated 20th July 2016 under Order 12 Rule 7 of the Civil Procedure Rules to set aside the order of 20th April 2016 dismissing his claim and to have the claim reinstated. He argued that the matter had, by consent on 31st July 2012, been stood over generally pending criminal proceedings against him in Criminal Case No. 495 of 2012 at Makadara Law Courts, which bore a direct relationship to the suit; that he never received the hearing notice of 4th April 2016 because his post office box had been closed for non-payment of rental fees; and that he had an arguable case. The Respondent, through the replying affidavit of its director Anthony Mburu Wanyoike, denied any direct relationship between the criminal case and the claim and maintained that pendency of criminal proceedings does not warrant staying civil proceedings. The Court framed a single issue: whether the Claimant had shown sufficient grounds for setting aside the dismissal order. Relying on the rental payment receipt dated 12th July 2016, the Court accepted that he had not received the notice. It further found that the consent order of 31st July 2012, to which the Respondent acquiesced, confirmed the connection with the criminal case, and that it would be unjust to penalise the Claimant for inaction the Court itself had permitted. The Court allowed the application, reinstated the claim, directed the parties to fix a hearing date on priority basis, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether sufficient grounds existed to set aside the dismissal order of 20th April 2016

Holding

The application was allowed; the Claimant established non-receipt of the hearing notice and a court-sanctioned reason for inaction.

Reasoning

The Claimant's post office box had been closed for non-payment of rental, and he produced a receipt dated 12th July 2016 showing its reopening. The Court found no reason to disbelieve that he only learned of the notice on that date. Further, the consent order of 31st July 2012, to which the Respondent acquiesced, confirmed a connection between the claim and pending criminal proceedings, so his inactivity was court-sanctioned.

p. 2

Legal principles established

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  • In an application to set aside an order dismissing a suit, the Court must have the ends of justice in view.
  • It is unjust to penalise a litigant for not prosecuting a claim where the Court itself had permitted the matter to await the outcome of related criminal proceedings.

Court orders

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  1. 1.The Claimant's application dated 20th July 2016 is allowed and the order of 20th April 2016 dismissing the claim is set aside
  2. 2.The Claimant's claim is reinstated for hearing and determination
  3. 3.Parties directed to take a hearing date on priority basis
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
Jurisdiction invoked
Order 12 Rule 7 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, "John E. Kihumba Muya v Nairobi Institute of Business Studies Ltd [2017] KEELRC 1925 (KLR)", Case Analysis (2017). Cause No 1033 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1925/eng@2017-01-20

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