Margaret Wairimu Gacheru v Beta Healthcare International [2019] KEELRC 1849 (KLR)
The bottom line
#A Kenyan court reinstated a dismissed employment case because the claimant's absence was caused by the court's own double-listing error.
What this practically means
#Executive summary
#Key legal issues
#Whether the simultaneous listing of the suit before the Judge and the Deputy Registrar constituted reasonable cause for non-appearance
The court found reasonable cause established, holding that although the claimant ought to have prioritised appearance before the Judge, it was possibly reasonable to appear initially before the Deputy Registrar.
The court found it undisputed that on the hearing date the suit appeared in both the Judge's and the Deputy Registrar's cause lists. Given that dual listing, the claimant and counsel who attended before the Deputy Registrar had a reasonable explanation for not being before the Judge when the suit was called out and dismissed. The court weighed the duty to prioritise the Judge's list against the practical reasonableness of attending the Deputy Registrar first, and concluded the mix-up occasioned by the listing error excused the non-appearance.
Whether invoking the Civil Procedure Act and Rules rather than the rules of the Court was fatal to the application
No - under Article 159 of the Constitution the procedural defect would not deny the claimant substantive justice.
The respondent's preliminary objection correctly identified that the application had invoked the Civil Procedure Act and Rules whereas the rules of the Court ought to have been invoked. The court nonetheless treated this as a curable procedural defect. Guided by the constitutional command that substantive justice shall be administered without undue regard to procedural technicalities, the court declined to strike out the application on that basis.
Whether the delay in filing the setting-aside application should defeat it
The delay was acknowledged but balanced against the ends of justice by way of a costs sanction rather than dismissal of the application.
The respondent urged that although the claimant learned of the dismissal on 15.10.2018, the application was filed belatedly on 30.01.2019. The court considered this delay a valid concern but chose to balance the ends of justice. Rather than refusing the relief outright, it imposed an unconditional costs order against the claimant as compensation for the delay and the respondent's attendance.
Legal principles established
#- A procedural defect, such as invoking the wrong procedural rules, will not deny a party substantive justice in view of Article 159 of the Constitution
- Where a cause listing error results in a suit being listed simultaneously before a Judge and a Deputy Registrar, that establishes reasonable cause for a party's failure to appear before the Judge
Court orders
#- 1.The orders given on 15.10.2018 dismissing the claimant's suit are set aside
- 2.Parties to fix a hearing date forthwith
- 3.The claimant to pay the respondent's costs of the application in any event
- Jurisdiction invoked
- Inherent and enabling powers of the court under Article 159 of the Constitution, sections 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules (invoked by the applicant; the court noted the correct rules were those of the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wairimu Gacheru v Beta Healthcare International [2019] KEELRC 1849 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1849/eng@2019-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.