Shadrack Mwirigi Baariu v Marania Limited [2018] KEELRC 1064 (KLR)

Employment and Labour Relations Court

28 September 2018

NMNzioki wa Makau

474 words in judgment

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The bottom line

Kenya's Employment Court refused to reinstate a lawsuit dismissed twice for the claimant's repeated failure to show up, warning that deliberate delay forfeits second chances.

What this practically means

Executive summary

The Claimant/Applicant moved the Employment and Labour Relations Court at Nyeri seeking reinstatement of his suit, which had been dismissed on 7th March 2018 at Meru after neither the claimant nor his counsel was present when the matter was called out; counsel arrived at 9.09 am to find the suit dismissed. The Respondent opposed reinstatement. The court set out the twin principles from Shah v Mbogo (1967) EA 166, reiterated in Patel v E.A. Cargo Handling Services Ltd (1974) EA 75: the discretion to set aside is unrestricted save that it be exercised on just terms, and it exists to relieve parties from accident, inadvertence or excusable mistake, not to reward deliberate obstruction. The court noted from its record that the claimant was alleged to have walked out to call his lawyer, that both counsel and client were late despite knowing court sitting times, and that the dismissal was procedural. Crucially, the suit had already been dismissed once for want of prosecution on 7th October 2016 following a notice to show cause issued before Ongaya J on 16th June 2016. This being a second dismissal, the court concluded the claimant was not keen on prosecuting the suit and fitted the description of a person deliberately obstructing or delaying the determination of the matter. The notice of motion was dismissed and the suit held not fit for readmission, standing dismissed.

Key legal issues

Whether the dismissal of the suit for non-attendance should be set aside and the suit reinstated

Holding

The motion was dismissed; the suit was not fit for readmission

Reasoning

The court applied the Shah v Mbogo principles. Both counsel and claimant were late despite knowing court hours, and the dismissal was procedural. The suit had previously been dismissed for want of prosecution on 7th October 2016 after a notice to show cause before Ongaya J. This being a second dismissal, the claimant was characterised as deliberately delaying determination of the matter.

p. 2

Legal principles established

The discretion to set aside an ex parte judgment or dismissal is unlimited except that it must be exercised on just terms, to avoid injustice from accident, inadvertence or excusable mistake, but not to assist deliberate obstruction of justice

Court orders

1.The notice of motion seeking reinstatement of the suit is dismissed
2.The suit stands dismissed

Authorities

Cases cited (2)

Shah v Mbogo
(1967) EA 166
Patel v E.A. Cargo Handling Services Ltd
(1974) EA 75

Jurisdiction invoked: Inherent discretion to reinstate a dismissed suit; not expressly stated

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Shadrack Mwirigi Baariu v Marania Limited [2018] KEELRC 1064 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1064/eng@2018-09-28

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