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ELRCDismissedNot stated in judgment· [2019] KEELRC 716 (KLR)

Franklin J. B. Chabari v Tharaka Nithi County Government & another [2019] KEELRC 716 (KLR)

Employment and Labour Relations Court
4 October 2019
NMNzioki wa Makau
1,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to revive a dismissed lawsuit because the claimant couldn't prove he missed the hearing due to his advocate's error.

What this practically means

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court at Meru seeking reinstatement of his suit, which was dismissed for non-attendance on 6th February 2019. He explained that his Advocate, Mr. Mutuma, had sent Mr. Ken Muriuki to hold his brief and obtain a time allocation; the hearing was fixed at 9.30am, but the holding advocate erroneously indicated 11.30am, and the Claimant and his advocate arrived at 11.30am to find the suit dismissed. He filed the reinstatement motion the same day, invoking Section 12(3) of the Employment and Labour Relations Court Act and relying on Grace Mwendwa Munjuri v Trustees of the Agricultural Society of Kenya on the disregard of technicalities under Article 159(d) of the Constitution. The Respondents opposed, contending that the absence at 9.00am and 9.30am was unexplained, that Muriuki's affidavit was not availed to prove the alleged misinformation, and that reinstatement would be futile since the Claimant's promotion had been revoked on 10th May 2018. They relied on Shah v Mbogo and Pithon Maina v Mugiria. The court held that the discretion to set aside exists to avoid injustice from accident, inadvertence or excusable mistake, but not to assist those who obstruct or delay justice. It found the Claimant had given no reason for absence at 9.00am and 9.30am, and that without Muriuki's affidavit the alleged miscommunication was unproved. While agreeing that issues of fact belong in affidavits rather than grounds of opposition, the court found the motion devoid of merit, dismissed it, and awarded costs to the Respondents.

Key legal issues

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01

Whether the dismissal for non-attendance should be set aside and the suit reinstated

Holding

The application was dismissed because the Claimant gave no satisfactory explanation for absence and did not prove the alleged misinformation by the advocate holding brief

Reasoning

The suit was fixed for hearing on 6th February 2019 in the presence of the Claimant's advocate. Neither the Claimant nor his advocate appeared at 9.00am when the case was first called, nor at 9.30am when it was scheduled for hearing, and the suit was dismissed. The Claimant's explanation—that the advocate holding brief misinformed him that hearing was at 11.30am—was unproved because Mr. Muriuki's affidavit was not availed. The court found the Claimant undeserving of the exercise of its discretion.

p. 2
02

Whether facts alleged in grounds of opposition were appropriate

Holding

The court agreed that issues of fact are best articulated in an affidavit, not grounds of opposition, but this did not save the motion

Reasoning

The Claimant argued that the Respondents' grounds of opposition contained facts that belonged in an affidavit. The court agreed with this submission in principle, but held that the motion nonetheless lacked merit because the Claimant himself failed to avail the affidavit of Muriuki Advocate to prove the alleged miscommunication about the hearing time.

p. 2

Legal principles established

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  • The discretion to set aside a dismissal or judgment entered in a party's absence is intended to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately obstructed or delayed the course of justice
  • A party seeking reinstatement must give a satisfactory explanation for non-attendance, including proving the alleged mistake of the advocate holding brief

Court orders

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  1. 1.The application is dismissed with costs to the Respondents

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)
  • Constitution of KenyaArticle 159(d)

Cases cited (9)

  • In Re Estate of Job Ndunda Muthike (Deceased)
    [2018] eKLR
  • Grace Mwendwa Munjuri v Trustees of the Agricultural Society of Kenya
    [2017] eKLR
  • Shah v Mbogo
    [1968] E.A. 93 / [1967] EA 116
  • Pithon Maina v Mugiria
    (1982-88) 1 KAR 177
  • John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates
    [2019] eKLR
  • Bilha Ngonyo Isaac v Kembu Farm Limited & Another
    [2018] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Mbogo v Shah
    [1968] EA 93
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act, Cap 234B, Laws of Kenya

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, "Franklin J. B. Chabari v Tharaka Nithi County Government & another [2019] KEELRC 716 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/716/eng@2019-10-04

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