Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNotice of Motion dated 22nd November 2018 (in Employment and Labour Relations Court suit dismissed 17th April 2018)· [2019] KEELRC 1741 (KLR)

Charles Ogola & 2 others v Manson Hart Kenya Limited [2019] KEELRC 1741 (KLR)

Employment and Labour Relations Court
6 May 2019
MOMaureen Onyango
2,327 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

#

Kenya's Employment Court reinstated a dismissed workers' case, ruling that a lawyer's mistake shouldn't cost litigants their day in court.

What this practically means

#

Executive summary

#
The claimants filed a Notice of Motion dated 22nd November 2018 under Section 63(e) and 3A of the Civil Procedure Act and Order 12 Rules 1 and 3 of the Civil Procedure Rules, seeking to set aside the court's order of 17th April 2018 dismissing their suit for non-attendance and to reinstate it, with costs in the cause. They blamed the advocate holding their counsel's brief, who was delayed attending to another matter, and argued that a mistake of counsel should not be visited on a litigant. The respondent opposed, citing a delay of over seven months in filing the application, the claimants' indolence, the absence of an affidavit from the advocate concerned, the maxim that equity aids the vigilant, and the fact that it had sold its business to Kenya Clay Products Limited so execution would be futile. Maureen Onyango J framed a single issue: whether there was a basis to exercise the court's discretion to set aside the dismissal and reinstate the suit. Relying on Shah v Mbogo, Shabir Din v Ram Parkash Anand, Belinda Murai v Amoi Wainaina, CMC Holdings v Nzioki and other authorities, the court held there was no inordinate delay, that both parties were absent on the dismissal date, that the fault was counsel's, and that the respondent would suffer no prejudice. The futility-of-execution argument was rejected as a violation of the applicants' Article 50 right of access to justice. The application was allowed, the dismissal set aside, the suit reinstated on condition it be set down for hearing within 60 days, with no orders as to costs.

Key legal issues

#
01

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

Holding

The application was allowed; the dismissal of 17th April 2018 was set aside and the suit reinstated on condition that the claimants set it down for hearing within 60 days.

Reasoning

The court held the delay of about six/seven months was not inordinate and was explained by a full diary; both parties were absent when the suit was dismissed; the fault was counsel's and should not be visited on the litigant; the respondent showed no prejudice; and Article 50 guarantees a fair hearing to both parties.

p. 3
02

Whether the respondent's claim that execution would be futile (it had sold its business) defeats reinstatement

Holding

Rejected; futility of execution should not be entertained as it would violate the applicants' right of access to the court.

Reasoning

The court held that the right to seek audience before a court of competent jurisdiction is absolute; trials should be allowed to run their course, and the respondent's assumption about futility of execution was misguided.

p. 2
03

Whether the supporting affidavit was defective for lack of an affidavit by the advocate who held brief

Holding

Rejected; the respondent's submission that the advocate should have sworn his own affidavit was unfounded.

Reasoning

The court found the affidavit of counsel adequately explained the advocate's non-attendance, and counsel's oral confirmation in court sufficed.

p. 2

Legal principles established

#
  • A court's discretion to set aside dismissal of a suit must be exercised fairly and judicially on good reason, to avoid injustice from accident, inadvertence or excusable mistake, and a mistake of counsel should not be visited on the litigant.
  • A litigant's right of access to the court under Article 50 is absolute and assumptions about futility of execution should not bar a hearing.

Court orders

#
  1. 1.Order of dismissal of suit made on 17th April 2018 set aside
  2. 2.Claimant's suit reinstated
  3. 3.Claimants to set down the suit for hearing within 60 days failing which the orders will lapse
  4. 4.No orders for costs

Authorities

#

Legislation

  • Civil Procedure ActSections 63(e), 3A
  • Civil Procedure RulesOrder 12 Rule 1 and 3; Order 23 Rule 2(1) and 2(2); Order IX rule 20
  • Constitution of KenyaArticle 50

Cases cited (7)

  • Shah v Mbogo
    [1967] EA 116
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another
    [2014] eKLR
  • Belinda Murai & Others v Amoi Wainaina
    (1978)
  • Gold Lida Ltd v NIC Bank & Joseph Gikonyo T/A Garam Investment Auctioneers
    ELC Civil Suit No. 177 of 2017
  • Branco Arabe Espanol v Bank of Uganda
    (1999) 2 EA 22
  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Section 63(e) and 3A of the Civil Procedure Act; Order 12 Rule 1 and 3 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Charles Ogola & 2 others v Manson Hart Kenya Limited [2019] KEELRC 1741 (KLR)", Case Analysis (2019). Notice of Motion dated 22nd November 2018 (in Employment and Labour Relations Court suit dismissed 17th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1741/eng@2019-05-06

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