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ELRCDismissedNot stated in judgment· [2018] KEELRC 364 (KLR)

Stephen Kivuva Kasilia v Metal Equipment Engineering Ltd [2018] KEELRC 364 (KLR)

Employment and Labour Relations Court
7 December 2018
RSRadido Stephen
590 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to reinstate an employee's dismissed case because he skipped two hearings and was dishonest about complying with court directions.

What this practically means

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Executive summary

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The applicant, Stephen Kivuva Kasilia, moved the Court by an application dated 14 August 2018 seeking to set aside and/or vary the orders of 9 July 2018 dismissing his Claim, and to reinstate the Cause, on grounds that his advocate's non-attendance was unintentional (a failure to diarise the hearing date) and that he had a good case and stood to suffer irreparable harm. The Respondent, through its Chief Accountant, opposed the application, contending that the applicant had failed to comply with pre-trial directions issued on 23 January 2018, had failed to serve a hearing notice and produce evidence of service as directed, and had wilfully failed to attend Court on 3 July 2018 and on 9 July 2018 when the Notice to Show Cause came up. Reviewing the record, the Court found that the applicant had claimed on 18 April 2018 that he had complied with and served pre-trial directions when service and compliance in fact occurred on 19 April 2018, that he failed to appear on 3 July 2018 without representation, and again failed to attend the Notice to Show Cause on 9 July 2018 despite service, leading to dismissal of the Cause. The Court concluded the applicant had been dishonest with the Court and casual in prosecuting his case, noting that an application to dismiss the Cause for want of prosecution had been filed as early as 11 October 2017 and that no explanation was offered for the non-attendance. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the applicant's non-attendance on 9 July 2018 was inadvertent and excusable

Holding

The Court found the non-attendance unexplained and the applicant dishonest, so reinstatement was refused

Reasoning

The applicant's advocate attributed non-attendance to failure to diarise the hearing date. However, the record showed the applicant had also failed to appear on 3 July 2018, had been dishonest in claiming compliance with pre-trial directions on 18 April 2018 when compliance occurred on 19 April 2018, and had failed to produce evidence of service as directed. An application to dismiss the Cause for want of prosecution had already been filed, showing the applicant's casual approach. Reinstatement was therefore not warranted.

p. 1

Legal principles established

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  • A party seeking reinstatement of a cause dismissed for want of prosecution must satisfactorily explain non-attendance; dishonesty and casualness in prosecuting a case disentitle the party to reinstatement.

Court orders

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  1. 1.The application dated 14 August 2018 is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court to set aside/vary its own orders (not expressly cited 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, "Stephen Kivuva Kasilia v Metal Equipment Engineering Ltd [2018] KEELRC 364 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/364/eng@2018-12-07

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