Simon Makau Ndaya v Del Monte Kenya Limited [2018] KEELRC 2517 (KLR)

Employment and Labour Relations Court

26 January 2018

RSRadido Stephen

955 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

A Kenyan court upheld the dismissal of an employee's suit because neither he nor his lawyer showed up, and the explanation for missing court was not believed.

What this practically means

Executive summary

The appellant sued Del Monte (K) Ltd before the Chief Magistrates Court at Thika for malicious termination of employment. An ex parte judgment in his favour was set aside in 2006, and after several aborted hearings the suit was dismissed for non-attendance on 13 March 2009, when neither the appellant nor his advocate was present. His application to set aside the dismissal and reinstate the suit was dismissed by the magistrate on 20 November 2012, prompting this appeal. The appeal was transferred from the High Court to the Employment and Labour Relations Court on 8 May 2017. The court applied the first-appeal duty, drawn from Kamau v Mungai (2006) 1 KLR 150, to re-evaluate the evidence and reach its own conclusions. On re-evaluation, the court found that the hearing date had been taken in the presence of a member of the appellant's advocate's firm; that the appellant admitted the case appeared in the cause list; and that his claim that he told his advocate not to attend was not genuine. The court held counsel had a professional obligation to attend court at 9.00am regardless of the client's instructions, and noted that the appellant failed to disclose the particulars of the clerk who established the dismissal. The magistrate's exercise of discretion was held not to have been erroneous in law or fact. The appeal was dismissed with no order as to costs.

Key legal issues

Whether the trial magistrate misdirected himself in declining to set aside the dismissal of the suit for non-attendance

Holding

The appeal was dismissed; the subordinate court exercised its discretion correctly because the appellant's explanation for non-attendance was insufficient

Reasoning

The court re-evaluated the record on first appeal. Both the appellant and his advocate were absent when the suit was called out on 13 March 2009, and the hearing date had been taken in the presence of a member of the appellant's own law firm. The appellant admitted the case was in the cause list yet claimed he advised his advocate not to attend, an explanation the court found not genuine. Particulars of the clerk said to have established the dismissal were also not disclosed. The magistrate's discretionary decision therefore disclosed no error in law or fact.

p. 3

Legal principles established

On a first appeal the court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses
Counsel has a professional obligation to attend court at the scheduled time and not wait on the client's instructions regarding the cause list

Court orders

1.The Appeal is dismissed with no order as to costs

Authorities

Cases cited (1)

Kamau v Mungai
(2006) 1 KLR 150

On appeal from: High Court (originally from Chief Magistrates Court, Thika; appeal transferred to this Court); Not stated in the judgment
Jurisdiction invoked: First appeal transferred to this Court by direction of the High Court on 8 May 2017

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Simon Makau Ndaya v Del Monte Kenya Limited [2018] KEELRC 2517 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2517/eng@2018-01-26

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