Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 47 of 2012· [2018] KEELRC 474 (KLR)

Fredrick Otieno Gudo v Africa Apparel EPZ Limited [2018] KEELRC 474 (KLR)

Employment and Labour Relations Court
14 December 2018
MOMaureen Onyango
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The claimant's suit was dismissed on 16th April 2018 for want of prosecution following the non-attendance of his advocate. The claimant, Fredrick Otieno Gudo, filed a Notice of Motion dated 20th April 2018 under Article 159(2)(d) and (e) of the Constitution, Sections 80, 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1-3 of the Civil Procedure Rules seeking review of the dismissal order, reinstatement of the suit and costs. The application was supported by affidavits of his advocate, Lourine Ochogo, the claimant and an advocate, Mr. Mwaniki, who explained that Ochogo was before Makau J in Cause No. 581 of 2010 and that Mwaniki, holding her brief, had stepped out due to a family emergency. The respondent opposed, asserting a history of non-attendance by the claimant's side, producing certified proceedings of Cause No. 581 of 2010 showing neither party's counsel was in court there on 16th April 2018, and alleging the claimant's advocate was misleading the court. Both parties filed submissions citing authorities on reinstatement of dismissed suits. Maureen Onyango J accepted that Section 3A of the Civil Procedure Act and Order 17 Rule 2(1) of the Civil Procedure Rules confer inherent power to reinstate a suit dismissed for want of prosecution, and that the discretion should balance the parties' interests. However, the claimant's counsel did not controvert the averment that she was not before Makau J on the material day. Holding that parties who compound default by deliberately misleading the court are disfavoured, and that a party coming to equity must come with clean hands, the court found no merit in the application and dismissed it with costs to the respondent.

Key legal issues

#
01

Whether the court should exercise its discretion to review and set aside the dismissal of the suit for want of prosecution

Holding

The application was dismissed because the claimant's counsel misled the court about her reasons for non-attendance and the applicant failed to controvert the respondent's averments of dishonesty

Reasoning

The court accepted that it has inherent power under Section 3A of the Civil Procedure Act and Order 17 Rule 2(1) of the Civil Procedure Rules to reinstate a suit dismissed for want of prosecution, and that such discretion should balance the interests of both parties. However, the respondent showed from certified proceedings in Cause No. 581 of 2010 that counsel for both parties were absent on 16th April 2018, contradicting the claimant's advocate's assertion that she was held up before Makau J. The claimant's counsel never responded to that averment. Misleading the court disentitled the applicant to the equitable discretion.

p. 4

Legal principles established

#
  • Section 3A of the Civil Procedure Act and Order 17 Rule 2(1) of the Civil Procedure Rules grant the court inherent power to reinstate a suit dismissed for want of prosecution, but the discretion is lost by a party who deliberately misleads the court
  • A party in default who compounds the default by deliberately misleading the court will not be granted relief; a party coming to equity must come with clean hands

Court orders

#
  1. 1.The Notice of Motion application dated 20th April 2018 seeking review and reinstatement of the suit is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(d) and (e)
  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 51 rule 15

Cases cited (8)

  • Professor Mwangi S. Kimenyi vs The Attorney General & Another
    HCCC No. 720 of 2009
  • Transami (K) Limited Vs Sokhi International (K) Ltd
    Unreported
  • Richard Ncharpi Leiyagu -V- Independent Electoral Boundaries Commission & 2 Others
    [2013] eKLR
  • Fran Investments Limited v G4S Security Services Limited
    [2015] eKLR
  • Savings and Loans Limited -vs- Susan Wanjiru Muritu
    Nairobi (Milimani) HCCS No.397 of 2002
  • Gold Lida Limited v Nic Bank Limited & 2 others
    [2018] eKLR
  • Mbogo & Another Vs Shah
    EALR 1908
  • Philip Chemwolo & Another Vs Augustine Kubede
    (1982-88) KAR 103
Jurisdiction invoked
Inherent power under Section 3A of the Civil Procedure Act and Order 17 Rule 2(1) of the Civil Procedure Rules; Article 159(2)(d) and (e) of the Constitution invoked by the applicant

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Fredrick Otieno Gudo v Africa Apparel EPZ Limited [2018] KEELRC 474 (KLR)", Case Analysis (2018). Cause No 47 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/474/eng@2018-12-14

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