Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No 1565 of 2015· [2019] KEELRC 594 (KLR)

Kenya National Private Service Workers Union v Security Guards Services Limited [2019] KEELRC 594 (KLR)

Employment and Labour Relations Court
25 October 2019
OMOnesmus N. Makau
2,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Employment Court reinstated a dismissed employment case, confirming that missing a hearing date doesn't permanently kill your suit if you act fast.

What this practically means

#

Executive summary

#
The claimant's suit was dismissed on 3rd April 2019 for want of prosecution after neither she nor her counsel attended court, although the respondent and her counsel were present and service of a hearing notice had been effected. The claimant, through the supporting affidavit of Cynthia Onyancha, applied by motion dated 4th April 2019 to set aside the dismissal and reinstate the suit, alleging confusion over two competing hearing dates (3rd and 5th April 2019) arising from directions given by the deputy registrar on 14th March 2019, and an inadvertent mistake. The respondent opposed, contending the claimant was duly served, had shown no interest in prosecuting the cause since 2015, and that reinstatement would delay enjoyment of the judgment. The court framed a single issue: whether the applicant had made a proper case for the discretionary setting aside of the dismissal order. Relying on Rule 22(2) of the ELRC (Procedure) Rules 2016, the equivalent repealed and current Civil Procedure Rules (via rule 32), the Court of Appeal decision in Njue Ngai v Ephantus Njiru Ngai (which adopted Peter Ngome v Plantex) and the classic principles in Shah v Mbogo, the court held that a dismissal for want of prosecution is a final judgment but settable aside. Finding the deputy registrar contributed to the date confusion, the application timeously filed, and no prejudice to the respondent beyond compensable costs, the court allowed the application, reinstated the suit on priority basis upon payment of throw away costs of Kshs.10,000. Delivered at Nairobi on 25th October 2019 by Onesmus N. Makau, J.

Key legal issues

#
01

Whether the dismissal of the suit for want of prosecution on 3rd April 2019 should be set aside and the suit reinstated

Holding

Yes. Although the applicant was served with a hearing notice and failed to attend, the court record retained two conflicting hearing dates (3.4.2019 and 5.4.2019) contributed to by the deputy registrar, the application was filed timeously, and the respondent showed no prejudice incapable of compensation by costs.

Reasoning

The court found the applicant failed to attend despite service, and did not prove her representative arrived late. However, the DR's fixation of two hearing dates created genuine confusion on the record. Justice requires the suit be heard on merits. The court exercised its discretion under rule 22(2) ELRC Rules and the equivalent civil procedure provisions, guided by Shah v Mbogo, conditioned on throw away costs of Kshs.10,000.

p. 3

Legal principles established

#
  • A dismissal for want of prosecution amounts to a final judgment but may be set aside upon a successful application by the claimant.
  • The court has an unfettered discretion to set aside its judgments upon terms, to be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.
  • Where a party fails to attend court on the day fixed for hearing, the court may dismiss the suit except for good reason to be recorded.

Court orders

#
  1. 1.The application dated 4.4.2019 is allowed and the orders of 3rd April 2019 dismissing the suit are set aside; the suit is reinstated for determination on merits
  2. 2.The applicant to pay throw away costs of Kshs.10,000 to the respondent before the hearing of the suit
  3. 3.The suit to be heard on a date to be fixed at the registry on priority basis

Authorities

#

Legislation

  • ELRC (Procedure) Rules 2016Rule 22(2); rule 32
  • Civil Procedure Rules (repealed)Order IXB rules 4(1), 7(2), 8
  • Civil Procedure RulesOrder 12 rules 3(1), 6(2), 7
  • Employment ActSection 3
  • Civil Procedure Act(definition of judgment referenced)

Cases cited (5)

  • D.T. Dobie & Co (K) vs. Joseph Mbaria Muchina
    CA 37 of 1978
  • Republic vs. National Government Constituency Development Fund Board & Another
    [2017] eKLR
  • Njue Ngai vs. Ephantus Njiru Ngai & Another
    [2016] eKLR
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Shah Vs. Mbogo and another
    [1966] EA 166
Jurisdiction invoked
Rule 22(2) ELRC (Procedure) Rules 2016 read with rule 32 (application of Civil Procedure Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Private Service Workers Union v Security Guards Services Limited [2019] KEELRC 594 (KLR)", Case Analysis (2019). Cause No 1565 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/594/eng@2019-10-25

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