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ELRCAllowedNot stated in judgment (Notice of Motion dated 04/03/2018/2019 in a claim filed 27/03/2014)· [2019] KEELRC 1251 (KLR)

Patrick Lumumba Wakhusama v Edward Ndungu & another [2019] KEELRC 1251 (KLR)

Employment and Labour Relations Court
17 June 2019
HWHellen Wasilwa
1,007 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 an employment claim dismissed when a clerk's diary error caused a missed hearing, saying innocent mistakes shouldn't end a case.

What this practically means

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Executive summary

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The Claimant, Patrick Wakhusama, brought a Notice of Motion under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and the Industrial Court Act seeking review and setting aside of the dismissal of his employment claim, which had been dismissed on 23/10/2018 for non-attendance. Supported by affidavits of his advocate Wilberforce Khalwale and clerk Christopher Mulinya, the application showed a history of diligent prosecution: the claim was filed on 27/03/2014 and fixed for hearing multiple times, failing to proceed on 02/12/2015, 26/05/2016 and 14/03/2018 for reasons not attributable to the claimant. The advocate's clerk misdiarized the 23/10/2018 hearing date as 23/11/2018, communicated to both parties, and the claimant learned of the dismissal only in February 2019. The Respondents, through a Replying Affidavit of the 1st Respondent, Edward Ndungu, opposed the application, contending he attended court when the matter was fixed by consent for 23/10/2018, that no appearance was made by the claimant's side, and that the claimant slept on his rights for about six months, causing prejudice and justifying dismissal with costs. The court found the claimant had demonstrated consistent interest in pursuing the matter and that the failure to attend was an innocent mistake for which he should not suffer. The court allowed the application, reinstated the case for hearing, ordered the claimant to set it down within 30 days in default of which it would stand dismissed, and made no order as to costs, reserving costs to the cause. Judgment was delivered by Lady Justice Hellen Wasilwa on 17 June 2019.

Key legal issues

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01

Whether the suit dismissed for want of prosecution should be reinstated

Holding

The court allowed the application and reinstated the case for hearing, noting the claimant's sustained interest in prosecuting the matter and that non-attendance was an innocent mistake.

Reasoning

The court examined the affidavits and found that the claimant had previously shown keen interest by fixing the matter for hearing several times, with some dates failing to proceed for reasons beyond his control. The non-attendance on 23/10/2018 arose from a clerical misdiarization by the advocate's clerk. Against that history, the court held the mistake was innocent and the claimant should not be punished by the loss of his day in court, subject to conditions ensuring expedition.

p. 2

Legal principles established

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  • A dismissal for non-attendance attributable to an innocent mistake should not cause the claimant to suffer the ultimate sanction of losing the suit.

Court orders

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  1. 1.The application is allowed and the case dismissed on 23/10/2018 is reinstated for hearing
  2. 2.The Claimant to set down the case for hearing within 30 days, in default the case to stand dismissed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Industrial Court ActNot specified
Jurisdiction invoked
Sections 1A, 1B & 3A and 63(e) of the Civil Procedure Act and the Industrial Court Act

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, "Patrick Lumumba Wakhusama v Edward Ndungu & another [2019] KEELRC 1251 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 04/03/2018/2019 in a claim filed 27/03/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1251/eng@2019-06-17

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