James Akoyo Mbirika v County Government of Kitui [2018] KEELRC 1459 (KLR)
The bottom line
#Kenya's Employment Court refused to revive a worker's dismissed case because he offered no personal explanation for missing his own hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the suit for want of prosecution should be set aside
No; the dismissal was proper and the application to set it aside lacked merit
The claimant fixed the hearing himself, served the hearing notice on the respondent, then failed to attend on the hearing date. Rule 22(2) permits dismissal except for good reason to be recorded. The claimant offered no affidavit of his own explaining the non-attendance, and counsel's claim of involvement in election petitions was unproven by any annexure of pleadings or cause lists. The authorities cited on inordinate delay were irrelevant because the suit was dismissed for non-attendance, not delay.
Relevance of the claimant's authorities on inordinate delay
Irrelevant; the dismissal was for non-attendance, not delay
The claimant's submissions and authorities (on inordinate delay and dismissal for want of prosecution) proceeded on the wrong premise. The court noted the application was premised on delay to prosecute the case, which was not the reason for dismissal, and that the claimant did not file a list of authorities or avail the cited cases to the court.
Legal principles established
#- Under Rule 22(2) of the ELRC Rules, where a party fails to attend court on the hearing date, the court may dismiss the suit unless there is good reason to be recorded
- An application to set aside dismissal for non-attendance must be supported by the party's own affidavit explaining the non-attendance and willingness to prosecute; a supporting affidavit by counsel alone is insufficient
Court orders
#- 1.The notice of motion dated 1st December 2017 seeking to review and set aside the dismissal orders of 29th November 2017 is dismissed
- 2.Costs of the application to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court Rules, Rule 22 (proceedings in the absence of either party)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Akoyo Mbirika v County Government of Kitui [2018] KEELRC 1459 (KLR)", Case Analysis (2018). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1459/eng@2018-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.