Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 55 of 2016· [2019] KEELRC 88 (KLR)

Solomon Ngaruiya Ndungu v Kirinyaga Construction (K) Ltd [2019] KEELRC 88 (KLR)

Employment and Labour Relations Court
29 November 2019
RSRadido Stephen
365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed a worker's third attempt to revive his case, ruling that repeating rejected arguments wastes the court's time.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge) dealt with the Claimant's third attempt to revive his employment Cause, which had been dismissed on 4 December 2018, apparently for non-attendance. On 7 February 2019 the Court dismissed an application to set aside the dismissal order because the Claimant's advocate was absent; on the same day the Claimant filed a further application seeking review of those orders and setting aside of the dismissal order, which the Court dismissed on 8 March 2019 (Ruling No. 2). On 10 September 2019, acting through a new firm of advocates, the Claimant filed yet another application seeking to set aside the dismissal order, arguing that his previous advocate had failed to inform him of the hearing date and that he had an arguable case which would cause no prejudice to the Respondent if reinstated. The Respondent opposed, citing the Claimant's inordinate delay, indolence, and lack of justifiable reasons. The Court held that the grounds now advanced were the very same grounds it had found insufficient in Ruling No. 2, merely differently packaged, and that the application was unmerited and an abuse of the Court process. Observing that the Claimant had a probable remedy against the advocates who failed him, the Court dismissed the application with costs to the Respondent. Judgment delivered at Nairobi on 29 November 2019.

Key legal issues

#
01

Abuse of process through repeated applications on the same grounds

Holding

The application was an abuse of process because it raised the same grounds the Court had already found insufficient in Ruling No. 2 of 8 March 2019, merely re-packaged.

Reasoning

The Claimant had made multiple prior applications seeking to revive the Cause dismissed on 4 December 2018: one dismissed on 7 February 2019 for non-prosecution and another dismissed on 8 March 2019 (Ruling No. 2). The new application, filed by fresh advocates on 10 September 2019, advanced the same complaint of lack of notice of hearing, only differently expressed. The Court held that grounds already considered and rejected could not form the basis of a fresh application.

p. 1
02

Claimant's remedy against negligent advocates

Holding

The Claimant's probable remedy lay against the advocates who failed him, not in successive applications to set aside the dismissal order.

Reasoning

The Claimant's principal ground was that his advocate on record failed to inform him of the hearing date. While sympathetic to the complaint, the Court observed that this grievance, even if true, pointed to a professional-negligence claim against the advocates rather than a basis for repeatedly asking the Court to revive a dismissed Cause. The application was therefore dismissed with costs to the Respondent.

p. 1

Legal principles established

#
  • A party cannot re-litigate grounds already considered and rejected by the Court; doing so is an abuse of process, and the remedy of a party let down by counsel lies against the advocates, not in serial applications to the Court.

Court orders

#
  1. 1.The application filed on 10 September 2019 seeking to set aside the dismissal order of 4 December 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court to review/set aside its own orders; Cause filed under the Court's employment jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Solomon Ngaruiya Ndungu v Kirinyaga Construction (K) Ltd [2019] KEELRC 88 (KLR)", Case Analysis (2019). Cause No. 55 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/88/eng@2019-11-29

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