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ELRCDismissedCause No 170 of 2017· [2019] KEELRC 286 (KLR)

Peter M. Kimotho v Attorney General & 2 others [2019] KEELRC 286 (KLR)

Employment and Labour Relations Court
22 November 2019
389 words in judgment
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The bottom line

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A Kenyan employment claim dismissed as time-barred stayed dismissed because the claimant waited over a year to challenge the decision without explaining the delay.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen J) on the Claimant's application of 1 November 2019 seeking to set aside the orders of 13 November 2018, by which the Court upheld the Respondents' preliminary objection and dismissed the Cause as statute time barred. The application was urged on 21 November 2019 on the grounds that the Claimant was unaware of the hearing dates and that the Cause had high chances of success. The Court examined the record and found that the Claimant's own advocate had issued a mention notice for the appearance of 30 October 2018, at which the Respondents disclosed their Notice of Preliminary Objection, and that the Claimant himself caused to be issued and served a mention notice indicating the Cause was listed for formal proof on 13 November 2018. Neither the Claimant nor his advocate attended on either occasion. The Court held that the assertion of unawareness of the proceedings could not be truthful. It further noted that the Claimant took over one year to move the Court, with no explanation tendered for the delay, which it found inordinate, and described his conduct in prosecuting the suit as at the very least professionally reckless. The Court found no merit in the application and ordered it dismissed with costs. Appearances: Mr. Mutali for the Claimant; Ms. Chesyna, State Counsel, for the Respondents. Court Assistant: Judy Maina.

Key legal issues

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01

Whether the Claimant was unaware of the hearing dates

Holding

The claim of unawareness was rejected as untruthful given the mention notices issued by the Claimant's own advocate fixing the dates

Reasoning

The record showed the Claimant's advocate issued a mention notice for 30 October 2018, and on 9 November 2018 the Claimant himself caused a mention notice to be issued and served indicating the Cause would come for formal proof on 13 November 2018. Neither the Claimant nor his advocate attended on either date. On that record the Court found the assertion of ignorance of the proceedings could not be truthful.

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02

Whether the one-year delay in bringing the application was excusable

Holding

The delay was inordinate and unexplained, weighing decisively against the application

Reasoning

The orders challenged were made on 13 November 2018, yet the Claimant only moved the Court on 1 November 2019 under certificate of urgency, more than one year later. No explanation whatsoever was tendered for that delay, and the Court characterized it as inordinate. The Court further described the Claimant's conduct in prosecuting his suit as professionally reckless.

p. 1

Legal principles established

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  • A party who issues or is served with mention notices fixing hearing dates cannot credibly claim ignorance of the proceedings
  • An unexplained delay of over one year in moving to set aside a dismissal order is inordinate and fatal to the application

Court orders

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  1. 1.The application seeking to set aside the orders of 13 November 2018 is dismissed with costs
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (not expressly stated in the judgment)

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, "Peter M. Kimotho v Attorney General & 2 others [2019] KEELRC 286 (KLR)", Case Analysis (2019). Cause No 170 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/286/eng@2019-11-22

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