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ELRCAllowedEmployment and Labour Relations Cause No. 1225 of 2012· [2018] KEELRC 2168 (KLR)

George Wambua Mutuku v Crown Industries Limited [2018] KEELRC 2168 (KLR)

Employment and Labour Relations Court of Kenya
8 March 2018
HWHellen Wasilwa
1,710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim dismissed after a lawyer missed a hearing was reinstated, confirming that parties shouldn't lose their day in court over a scheduling mistake.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 13th November 2017 brought by the Claimant under Section 1(A), (B) and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, seeking reinstatement of Employment and Labour Relations Cause No. 1225 of 2012, which had been dismissed on 7th November 2017 for non-attendance. The Claimant explained that his advocates, Atieno Opiyo and Company Advocates, had fixed the matter for hearing on 7th November 2017 and served the Respondent's advocates, but inadvertently failed to diarise the date and therefore did not attend. The Respondent opposed, citing a history of non-prosecution including a two-year gap after 10th December 2014 and previous absence on 3rd April 2017, and argued the dismissal was proper under Order 22(2) of the Employment and Labour Relations Court (Procedure) Rules 2016. The Claimant relied on Pithon Waweru Maina v Thuka Mugira and CMC Holdings Ltd v Nzioki on the discretionary principles for setting aside ex parte outcomes. Justice Hellen Wasilwa reviewed the chronology and found that the Claimant had actually testified and closed his case on 27th March 2013, so the dismissal for want of prosecution was itself a mistake by the court, which had assumed the claim had never been prosecuted. Exercising her discretion, the judge allowed the application, reinstated the suit for hearing on merit, and ordered costs of the application to be in the cause. The judgment was delivered on 8th March 2018.

Key legal issues

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

Holding

The application was allowed. The court found the Claimant's failure to attend was due to an inadvertent failure to diarise the hearing date, and further found the dismissal itself was an error because the Claimant had already prosecuted and closed his case.

Reasoning

The court reviewed the chronology: the case was filed in July 2012, the Claimant testified and closed his case on 27/3/2013, and subsequent adjournments were attributable to the Respondent. On 7/11/2017 the court dismissed the claim for want of prosecution, mistakenly assuming the Claimant had never prosecuted his case. The court regretted this error and, applying the principles in Pithon Waweru Maina and CMC Holdings Ltd v Nzioki, exercised its discretion to reinstate the suit so it could be determined on merit.

p. 3

Legal principles established

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  • A party should not be made to suffer the mistake of counsel.
  • The court's discretion to set aside an ex parte dismissal exists to avoid injustice from inadvertence or excusable mistake and must be exercised judiciously.

Court orders

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  1. 1.The application dated 13th November 2017 is allowed and Employment and Labour Relations Cause No. 1225 of 2012, dismissed on 7th November 2017 for want of prosecution, is reinstated
  2. 2.The reinstated claim is to be heard and determined on merit upon hearing both parties
  3. 3.Costs of the application are in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1(A), (B) and 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Employment and Labour Relations Court (Procedure) Rules 2016Order 22(2)

Cases cited (3)

  • Pithon Waweru Maina Versus Thuka Mugira
    (1983) eKLR
  • Lucy Bosire versus Kehancha Div Land Dispute Tribunal and 2 others
    [2013] eKLR
  • CMC Holdings Limited vs Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Sections 1(A), (B) and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, together with all enabling provisions of the law

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, "George Wambua Mutuku v Crown Industries Limited [2018] KEELRC 2168 (KLR)", Case Analysis (2018). Employment and Labour Relations Cause No. 1225 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2168/eng@2018-03-08

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