John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates [2019] KEELRC 1792 (KLR)
The bottom line
#Kenya's Employment Court refused to reinstate a dismissed suit, ruling that missing your hearing date is not always an excusable mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether the non-attendance of the Claimant and his advocate constituted an excusable mistake justifying reinstatement
It did not; both were practising advocates aware of the court's punctual hearing practice, and their absence was a deliberate delay of the course of justice
The court accepted that the motion was filed timeously with no delay. It set out the Mbogo v Shah principles governing the discretion to set aside. It then found that the Claimant, an advocate practising before the court, and his advocate both knew the court hears matters at appointed times without deviation. Their joint absence when the matter was called was therefore not an excusable mistake but a deliberate delay of the course of justice, which the discretion is not designed to assist.
Timeliness of the motion to set aside the dismissal order
The motion was made timeously and there was no delay
The court noted as a preliminary point that the motion seeking to set aside the dismissal was brought without delay. However, timeliness alone was not sufficient; the applicant still had to demonstrate accident, inadvertence or excusable mistake, which the court found had not been established on the facts.
Legal principles established
#- The court's discretion to set aside an ex parte order is unlimited except that it must be exercised on such terms as are just, the main concern being to do justice to the parties
- The discretion to set aside is meant to relieve against accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed the course of justice
- A discretionary power must be exercised judicially and not arbitrarily or idiosyncratically
Court orders
#- 1.The Claimant's motion seeking to set aside the order dismissing the suit is dismissed
- 2.Costs of the motion awarded to the Respondent
- Jurisdiction invoked
- Inherent discretion of the court to set aside an order dismissing a suit for non-attendance (as considered in Mbogo & Another v Shah and Pithon Waweru Maina v Thuku Mugiria)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates [2019] KEELRC 1792 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1792/eng@2019-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.