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ELRCAllowedNot stated in judgment· [2018] KEELRC 123 (KLR)

Martha Wanjiru Mungai v Board of Management Pioneer School [2018] KEELRC 123 (KLR)

Employment and Labour Relations Court
11 December 2018
NMNzioki wa Makau
721 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 case because the employer could not prove she was ever served with the hearing notice.

What this practically means

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Executive summary

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The Claimant moved the court by notice of motion dated 6th August 2018 seeking reinstatement of her suit, which had been dismissed for non-attendance on 14th May 2018. She deponed that the hearing date was fixed in her absence and that of her counsel, that the dismissal condemned her unheard, and that no mistake was attributable to her. The Respondent opposed, asserting through an advocate's replying affidavit that the hearing notice was served by G4S Courier and received at the Claimant advocate's firm, and that the Claimant's repeated non-attendance demonstrated indolence, invoking the maxim that equity aids the vigilant. In submissions, the Claimant argued the waybill did not disclose that a hearing notice was sent and that service was unproven, relying on Maersk (K) Limited v Prafula Enterprises and Gold Lida Limited v NIC Bank. The Respondent relied on Josephat Muthui Muli v Ezetec Ltd and Stephen Gathua Kimani v Nancy Wanjira Waruingi, contending the five-month delay was unreasonable. Nzioki wa Makau J reviewed the record, noting the hearing date had been fixed at a mention on 14th February 2018 when the Claimant did not appear, and that a notice was ordered to issue. Critically, no affidavit of service of the hearing notice appeared on the court record, nor any replying affidavit. That omission was the saving grace for the Claimant, who appeared not to have been served. The court held discretion must not be exercised to produce an injustice, allowed the motion, reinstated the suit, ordered costs of the motion to be costs in the cause, and directed that a hearing date be fixed immediately.

Key legal issues

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01

Proof of service of the hearing notice

Holding

The Respondent failed to prove service of the hearing notice; the court record contained no affidavit of service, and this omission justified reinstatement.

Reasoning

The court examined the record and found that although directions had been issued on 28th January 2018 and the hearing date fixed at the mention of 14th February 2018, no affidavit of service of the hearing notice was on the court file. The Respondent's assertion of service through G4S Courier was unsupported by any replying affidavit on the record. The absence of proof of service was therefore decisive in the Claimant's favour.

p. 2
02

Exercise of discretion in reinstating a suit dismissed for non-attendance

Holding

The discretion to reinstate was exercised in the Claimant's favour because the dismissal risked condemning her unheard where service was unproven.

Reasoning

The court acknowledged that timeliness matters and that equity aids the vigilant, as urged by the Respondent. However, discretion must not be exercised so as to produce an injustice. Since the Claimant may never have received the hearing notice, dismissing her motion would condemn her unheard. The motion was accordingly allowed with costs in the cause.

p. 2

Legal principles established

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  • The court should not exercise its discretion so as to lead to an injustice and must consider the timeliness of the motion when setting aside a dismissal for non-attendance.

Court orders

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  1. 1.The notice of motion dated 6th August 2018 is allowed and the suit reinstated
  2. 2.Costs of the motion to be costs in the cause
  3. 3.A hearing date to be fixed immediately upon delivery of the ruling

Authorities

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Cases cited (5)

  • Maersk (K) Limited & Another v Prafula Enterprises Limited
    [2018] eKLR
  • Gold Lida Limited v NIC Bank Limited & 2 Others
    [2018] eKLR
  • Josephat Muthui Muli v Ezetec Ltd
    [2014] eKLR
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Godfrey Ajuang Okumu v Nicholas Odera Opinya
    Kisumu High Court Civil Case No. 337 of 1996
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit dismissed for non-attendance (not expressly 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, "Martha Wanjiru Mungai v Board of Management Pioneer School [2018] KEELRC 123 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/123/eng@2018-12-11

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