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ELRCDismissedCause No 504 of 2011· [2018] KEELRC 853 (KLR)

Nourine Yakub v Simoun Travel Ltd [2018] KEELRC 853 (KLR)

Employment and Labour Relations Court
30 October 2018
546 words in judgment
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The bottom line

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A Kenyan employment court refused to revive a case dismissed after the claimant repeatedly failed to attend hearings over seven years.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge) delivered on 30 October 2018 on the Claimant's application to set aside an order dismissing her suit and to reinstate it. The Cause had been scheduled for hearing on 6 February 2018 following a mention before the Deputy Registrar on 14 November 2017. On the hearing date, the Claimant and her advocate were absent; the Respondent's advocate sought an adjournment on the ground of illness. Considering the Claimant's absence and prior failures to attend, the Court dismissed the Cause with no order as to costs. The Claimant then applied for reinstatement, explaining that her advocate had forgotten to diarise the hearing date, and urged that an inadvertent mistake of counsel should not be visited on the client and that the Respondent would suffer no prejudice. The Respondent opposed, contending that the Claimant had not taken steps to have the Cause heard for over 7 years, amounting to inordinate delay, that she had not come to Court with clean hands, and that the interests of justice did not favour reinstatement. The Court noted the Claimant's earlier absence when the Cause first came up for hearing on 11 April 2012, and the 2017 Notice to Show Cause proceedings. Holding that the Claimant had shown a casual approach and lack of diligence undeserving of the Court's discretion, the Court dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the inadvertent mistake of counsel in failing to diarise a hearing date should be excused so as to reinstate a dismissed suit

Holding

The application was refused because the Claimant's conduct, including prior non-attendance and failure to prosecute the cause for over 7 years, showed lack of diligence

Reasoning

The Court placed the 6 February 2018 non-attendance in the context of the Claimant's earlier absences, including failure to attend when the Cause first came up for hearing on 11 April 2012, and the dismissal after a Notice to Show Cause in 2017. Against that history, the explanation that counsel forgot to diarise the date did not warrant the exercise of discretion, as the Claimant displayed a casual approach and lack of diligence in a 7-year-old case.

p. 2
02

Whether reinstatement would prejudice the Respondent or the interests of justice

Holding

The Court was not persuaded that the interests of justice tilted in favour of granting the orders sought

Reasoning

The Respondent contended that the Claimant had not taken appropriate steps to have the Cause heard for over 7 years, amounting to inordinate delay, had not come to Court with clean hands, and that the interests of justice did not favour reinstatement. The Court accepted the contextual view of the Claimant's repeated non-attendance and dismissed the application.

p. 1

Legal principles established

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  • A party seeking reinstatement of a suit dismissed for non-attendance must demonstrate diligence; a casual approach to prosecution of a case disentitles the party from the exercise of the Court's discretion in their favour
  • A party's failure to attend a hearing must be assessed in the context of prior conduct and previous absences

Court orders

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  1. 1.The application seeking to set aside the dismissal of 6 February 2018 and reinstate the suit is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; inherent discretion to reinstate a suit dismissed for non-attendance

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, "Nourine Yakub v Simoun Travel Ltd [2018] KEELRC 853 (KLR)", Case Analysis (2018). Cause No 504 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/853/eng@2018-10-30

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