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ELRCPartially AllowedNot stated in the excerpt· [2019] KEELRC 753 (KLR)

Daniel Mwaura Njihia v Mathare Youth Association & another [2019] KEELRC 753 (KLR)

Employment and Labour Relations Court of Kenya
16 September 2019
HWHellen Wasilwa
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court reinstated a dismissed application after missed hearing, prioritising justice over technical rules where no prejudice results.

What this practically means

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Executive summary

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Bob Munro, the Applicant and 2nd Respondent in the main claim, filed a Notice of Motion on 14 February 2019 under Sections 1A and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules seeking to set aside the Court's order of 6 February 2019 dismissing his Notice of Motion dated 30 November 2018, and to have that application reinstated for hearing. The dismissed application had sought the Applicant's removal from the claim for misjoinder; it was dismissed when his advocates failed to attend the inter partes hearing, allegedly because of misdiarisation by the firm's clerk and the office administrator. The Respondent opposed through Grounds of Opposition, contending that the application was fatally defective because it invoked the Civil Procedure Rules when the ELRC has its own Procedure Rules 2016, that Rule 22(2) permits dismissal for non-attendance except for good reason, and that the reasons advanced were insufficient, the fault lying with the advocates and their clerks. Both sides filed written submissions, the Applicant relying inter alia on Ivita v Kyumbu on prejudice. Delivering its ruling on 16 September 2019, Wasilwa J held that the Claimant would suffer no prejudice if reinstatement were allowed and exercised the Court's discretion in favour of the Applicant. The Court set aside the dismissal order of 6 February 2019, reinstated and admitted the dismissed application for hearing inter partes, and ordered costs in the cause. The procedural objection regarding the applicable Rules was not upheld.

Key legal issues

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01

Competence of an application brought under the Civil Procedure Rules in the ELRC

Holding

The Court did not uphold the objection; it entertained and allowed the application on its merits despite the objection that the ELRC (Procedure) Rules 2016 apply

Reasoning

The Respondent argued that invoking wrong statutory provisions renders an application incompetent, relying on case law. The Court, however, considered the nature of the orders sought and the merits, focusing on prejudice rather than striking the application down for the procedural objection.

p. 2
02

Whether the dismissal for non-attendance should be set aside

Holding

The dismissal was set aside because the non-attendance resulted from a misdiarisation by the advocate's clerk and no prejudice would be suffered by the Claimant

Reasoning

The Court found the genesis of the matter was an application by the 2nd Respondent to be struck off the claim for misjoinder, which was dismissed for want of prosecution after non-attendance. Taking a justice-oriented approach and finding no prejudice to the Claimant, the Court exercised its discretion to reinstate.

p. 2

Legal principles established

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  • An application dismissed for non-attendance may be reinstated where no prejudice will be suffered by the opposing party

Court orders

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  1. 1.The order of the Court made on 6/02/2019 dismissing the Applicant/2nd Respondent's Notice of Motion dated 30/11/2018 is set aside
  2. 2.The dismissed application dated 30th November 2018 is reinstated and admitted for hearing inter partes
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 22(2)

Cases cited (6)

  • Lochab Bros Ltd v Peter Kaluma T/A Lumumba Mumma & Kaluma Advocates & 2 Others
    [2013] eKLR
  • James Mwangi Gathara & another v Officer Commanding Station Loitoktok & 2 Others
    [2018] eKLR
  • Ivita v Kyumbu
    [1975] eKLR
  • Joel K Yegon & 4 Others v John Rotich & 4 Others
    [2004] eKLR
  • Aviation and Allied Workers Union Kenya v Kenya Airways Limited & 3 Others
    [2015] eKLR
  • Attorney General v Law Society of Kenya & another
    [2013] eKLR
Jurisdiction invoked
Section 1A and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules (as invoked by the Applicant)

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, "Daniel Mwaura Njihia v Mathare Youth Association & another [2019] KEELRC 753 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/753/eng@2019-09-16

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