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ELRCAllowedNot stated in the judgment as provided· [2019] KEELRC 1213 (KLR)

Newton Makutwa v Makokha Odende Godrick & 5 others [2019] KEELRC 1213 (KLR)

Employment and Labour Relations Court
8 July 2019
MNMathews N. Nduma
692 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court restored an employee's dismissed lawsuit because the lawyer received the warning notice too late to respond.

What this practically means

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Executive summary

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The claimant sued in 2013 seeking compensation for unlawful dismissal from employment, costs and interest. A defence was filed by the 1st, 3rd and 5th respondents in 2014. In 2015 the claimant obtained an order for substituted service on the 2nd and 4th respondents, granted in October 2016. A notice to show cause why the suit should not be dismissed for want of prosecution, issued by the Deputy Registrar on 14th May 2018, was fixed for hearing on 6th June 2018. Neither party attended, and the court dismissed the suit for non-prosecution, the last step having been taken on 27th October 2016. The claimant then applied to set aside the dismissal under Sections 3A and 63(e) of the Civil Procedure Act and Orders 10 rule 11, 17 rule 2 and 51 rule 1 of the Civil Procedure Rules, explaining that service difficulties and lack of funds for the newspaper advertisement caused the delay, and that counsel received the notice to show cause only after the orders were made. The 1st, 3rd and 5th respondents opposed through grounds of objection, arguing inexcusable delay, abuse of process, violation of Section 3 of the Employment Act, and prejudice in tracing witnesses. The claimant relied on the Eunice Soko Mlagui decision and the Kenya Power and Lighting case, which held that notice to show cause must be given before dismissal. The court found it undisputed that the notice reached the claimant after the dismissal date, allowed the application, set aside the dismissal, and directed the claimant to set the suit down for hearing immediately, failing which it would stand dismissed. Costs were awarded in the cause.

Key legal issues

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01

Whether a dismissal for want of prosecution after the claimant failed to receive the notice to show cause in time should be set aside

Holding

The application to set aside is meritorious because the claimant received the notice to show cause only after the dismissal date, so the dismissal was made in the absence of both parties without an effective opportunity to show cause.

Reasoning

The court found as undisputed that the claimant's counsel received the notice to show cause after the hearing date of 6th June 2018, when the suit was dismissed in the absence of both parties. Relying on the cited authority that notice to show cause must precede dismissal, the court held the dismissal was procedurally defective. It nonetheless directed the claimant to fix the suit for hearing immediately, warning of automatic dismissal if prosecution again lags.

p. 2

Legal principles established

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  • Dismissal of a suit for want of prosecution requires that parties be given notice to show cause before any order of dismissal is made

Court orders

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  1. 1.The application to set aside the dismissal order is granted and the dismissal for want of prosecution is set aside
  2. 2.The claimant is directed to cause the suit to be set down for hearing on the date of the ruling and to prosecute it on the date set by the court, failing which the suit will stand dismissed for want of prosecution unless non-prosecution is not attributable to the claimant
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 17 rule 2
  • Civil Procedure RulesOrder 51 rule 1
  • Employment ActSection 3

Cases cited (2)

  • Eunice Soko Mlagui vs Suresh Parume and others
    (2010) eKLR
  • Kenya Power and Lighting Company Limited vs Kenya Cold Storage 1964 Limited
    HCCC No. 387 of 2002
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act and Order 10 rule 11, Order 17 rule 2 and Order 51 rule 1 of the Civil Procedure Rules

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, "Newton Makutwa v Makokha Odende Godrick & 5 others [2019] KEELRC 1213 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1213/eng@2019-07-08

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