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ELRCDismissed· [2019] KEELRC 1792 (KLR)

John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates [2019] KEELRC 1792 (KLR)

Employment and Labour Relations Court of Kenya at Nyeri
9 April 2019
537 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant moved the court to set aside an order dismissing his suit for non-attendance, asserting that the failure to attend was inadvertent and beyond his control. He and his advocate deponed that they were engaged in other courts and the matter was called out before they could return. They argued the absence was an excusable mistake and that reinstatement would cause the Respondent no prejudice. The Respondent opposed, contending the application lacked merit and should be dismissed with costs. The court noted the motion was filed timeously, with no delay. It then set out the principles from Mbogo & Another v Shah and Pithon Waweru Maina v Thuku Mugiria on setting aside ex parte orders: the discretion is unlimited save that it must be exercised on just terms to do justice between the parties; it exists to relieve against accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay; and it must be exercised judicially. The court observed that the Claimant is an advocate who practises before the court, and that his advocate likewise practises there, so both knew the court hears matters at appointed times without deviation. Their joint absence when the suit was called was held to be a deliberate delay of the course of justice rather than an excusable mistake. The motion was accordingly dismissed with costs to the Respondent.

Key legal issues

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01

Whether the non-attendance of the Claimant and his advocate constituted an excusable mistake justifying reinstatement

Holding

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

Reasoning

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.

p. 2
02

Timeliness of the motion to set aside the dismissal order

Holding

The motion was made timeously and there was no delay

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Claimant's motion seeking to set aside the order dismissing the suit is dismissed
  2. 2.Costs of the motion awarded to the Respondent

Authorities

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Cases cited (2)

  • Mbogo & Another v Shah
    [1968] EA 93
  • Pithon Waweru Maina v Thuku Mugiria
    [1983] KLR 78
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

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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, "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.