Joseph Sudi Ndinyo & another v Kenya Utalii College [2018] KEELRC 2356 (KLR)
The bottom line
#A Kenyan employment court refused to restore dismissed interim orders because the lawyer's absence was explained only by unsworn hearsay, not proper evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants' non-attendance on 29 January 2018 was sufficiently explained to warrant reinstatement of the dismissed application
The explanation was inadequate: the supporting affidavit relied on what counsel's clerk reported, and the court clerk delegated to seek an advocate to hold brief did not swear an affidavit on what transpired
The Court accepted it was not disputed that the applicants' advocate was before another court, but the account of what happened in this court was uncorroborated. The clerk who was delegated to hold brief arrangements did not depone to an affidavit, which would have carried more weight. The applicants' hearsay account therefore could not justify reinstatement.
Whether the underlying suit justified restoration of the interim orders
Reinstatement was refused because the dismissals were already a fait accompli and the Court retains statutory power to order reinstatement or re-engagement upon a finding of unfair termination at the hearing of the main cause
The Court considered that the litigation concerned dismissals already effected, so the interim orders were of diminished utility. Since the Employment and Labour Relations Court can grant the ultimate remedy of reinstatement or re-engagement after hearing the merits, the applicants would not be prejudiced by proceeding to a full hearing rather than restoring the interlocutory orders.
Legal principles established
#- A party seeking reinstatement of an application dismissed for non-attendance must properly explain the non-attendance with competent evidence, and courts weigh whether reinstatement is warranted given the underlying litigation's status and the court's statutory powers to grant final remedies.
Court orders
#- 1.The application seeking reinstatement of the application dated 22 December 2017 and its interim orders is dismissed
- 2.No order as to costs
- 3.The parties to move and progress the Cause to hearing on the merits
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (no specific constitutional/statutory provision cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Sudi Ndinyo & another v Kenya Utalii College [2018] KEELRC 2356 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2356/eng@2018-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.