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ELRCDismissedNot stated on the face of the judgment· [2018] KEELRC 1459 (KLR)

James Akoyo Mbirika v County Government of Kitui [2018] KEELRC 1459 (KLR)

Employment and Labour Relations Court
18 July 2018
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By notice of motion dated 1st December 2017, the claimant sought review and setting aside of orders made on 29th November 2017 by Hon. Lady Justice Maureen Onyango dismissing his suit for want of prosecution. The claimant attributed the non-attendance to his advocates' involvement in election petitions in Kerugoya, Nairobi and Busia, and to an oversight in scheduling. He relied on authorities on inordinate delay, including IVITA -V- KYUMBU, and sought lenient exercise of the court's discretion. The respondent opposed through grounds of contention that the claimant had not diligently prosecuted the pending claim, that no evidence showed counsel's election petition commitments, and that no affidavit by the claimant himself explained the non-attendance. The court, per Maureen Onyango J, applied Rule 22 of the Employment and Labour Relations Court Rules, which permits dismissal where a party fails to attend without satisfactory reasons, except for good reason to be recorded. The court held that the claimant, having fixed the hearing himself and served notice, offered no personal affidavit explaining the non-attendance or expressing willingness to prosecute; counsel's allegations of election petition engagements were unproven by annexures; and the authorities on inordinate delay were irrelevant since the dismissal was for non-attendance, not delay. Noting that the claimant did not file a list of authorities, the court found no merit in the application and dismissed it with costs to the respondent on 18th July 2018 at Nairobi.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside

Holding

No; the dismissal was proper and the application to set it aside lacked merit

Reasoning

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.

p. 3
02

Relevance of the claimant's authorities on inordinate delay

Holding

Irrelevant; the dismissal was for non-attendance, not delay

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Employment and Labour Relations Court RulesRule 22(1) and (2)

Cases cited (5)

  • AUSTIN SECURITIES -V- NORTHGATE AND ENGLISH STORES LIMITED
    [1969] I WLR
  • ALLEN -V- ALFRED MCALPHINE & SONS
    [1968] 1 All ER
  • AGIP (KENYA) LIMITED -V- HIGHLANDS TYRES LIMITED
    [2001] KLR 630
  • SAGOO -V- BHARI
    [1990] KLR 457
  • IVITA -V- KYUMBU
    [1984] KLR 441
Jurisdiction invoked
Employment and Labour Relations Court Rules, Rule 22 (proceedings in the absence of either party)

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, "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.