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ELRCDismissedNot stated in the judgment· [2017] KEELRC 1928 (KLR)

Gilbert Wafula Kaika v Farmers Choice Limited [2017] KEELRC 1928 (KLR)

Employment and Labour Relations Court
20 January 2017
RSRadido Stephen
516 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 dismissed because the claimant missed his hearing and failed to convincingly explain why — so careful case tracking really matters.

What this practically means

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Executive summary

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The Claimant, Gilbert Wafula Kaika, had sued Farmers Choice Limited alleging unfair termination of his employment by letter dated 15 October 2013 and underpayment, claiming a total of Kshs 612,678/-. The Respondent maintained that the termination followed a disciplinary hearing, that all terminal dues were paid, and that it was discharged. The Cause was fixed for hearing on 25 October 2016 at a scheduling dated 18 December 2015 attended by both counsel. When the Cause was called on 25 October 2016, neither the Claimant nor his advocate attended, and the Respondent successfully applied for dismissal of the Cause. The Claimant then moved the Court to set aside the dismissal order, contending there had been a misdiarisation of the hearing date (26 October 2016 instead of 25 October 2016) amounting to a genuine mistake. The Respondent opposed, arguing the Claimant was not vigilant in managing his case, that neither the Claimant nor his advocate could have been mistaken as to the date, and that the Claimant had not sworn any affidavit confirming his own belief that the hearing was on 26 October 2016. The Court, per Radido Stephen J, restated that a party seeking setting aside of a dismissal must make frank and full disclosure of the circumstances of non-attendance, and that such applications should not be made as a matter of course on the mistaken belief that mistakes of advocates will automatically be excused. Noting that the Court's cause list is published a week in advance on the notice board and the Kenya Law Reports website, and that the Claimant was silent on whether he had consulted it, the Court found the Claimant had taken a casual approach and declined to exercise its discretion in his favour, dismissing the motion dated 26 October 2016. Judgment was delivered in Nakuru on 20 January 2017.

Key legal issues

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01

Whether to set aside an order dismissing a suit for non-attendance

Holding

The application was dismissed; the Claimant failed to make full and frank disclosure and took a casual approach, and was silent on whether he consulted the published weekly cause list.

Reasoning

The Court reiterated that an applicant for setting aside a dismissal must make frank and full disclosure of the circumstances of non-attendance. The Claimant attributed his absence to a misdiarisation (26 instead of 25 October 2016) but did not swear an affidavit confirming his own belief in the wrong date, took a casual approach in drafting and submissions, and did not explain why he had not consulted the weekly cause list published in advance. The discretion was accordingly not exercised in his favour.

p. 2

Legal principles established

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  • A party seeking setting aside of a dismissal order must make frank and full disclosure of the circumstances which led to the failure to attend court.
  • Such applications should not be made as a matter of course on the belief that mistakes of counsel will automatically be excused.
  • The Court's weekly cause list is published in advance and litigants are expected to consult it.

Court orders

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  1. 1.The Court declined to exercise its discretion in favour of the Claimant and dismissed the motion dated 26 October 2016
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a employment/termination Cause; specific provision not stated in the 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, "Gilbert Wafula Kaika v Farmers Choice Limited [2017] KEELRC 1928 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1928/eng@2017-01-20

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