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ELRCDismissedNotice of Motion Application dated 24th April 2017· [2019] KEELRC 2366 (KLR)

James Yanga Yeswa v Bob Morgan Services Limited (Cause 1367 of 2014) (Employment and Labour) [2019] KEELRC 2366 (KLR)

Employment and Labour Relations Court (Industrial Court)
8 February 2019
MOMaureen Onyango
1,566 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to revive a dismissed lawsuit because the claimant waited over three years without a credible explanation.

What this practically means

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Executive summary

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The Claimant, Wilberforce Khalwale, filed a Notice of Motion dated 24th April 2017 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 claim, that the claim be set down for hearing forthwith, and costs in the cause. He averred that the dismissal occurred when his advocate, engaged in several matters before different judges of the court, arrived late, and that the claimant himself was outside the courtroom door. The claimant relied on Article 159(2) of the Constitution and the overriding objective, arguing that an advocate's mistake should not be visited on a litigant and that courts should sustain suits rather than terminate them on technicalities. The Respondent opposed, arguing the application, filed two months after the dismissal, was an afterthought, the delay unexplained, and that reinstatement would prejudice its ability to call witnesses no longer in its employment. The court framed one issue: whether the suit should be reinstated. Applying the Birket v James principles and the Ivita v Kyumbu prejudice test as adopted in Azhar Mohammed Sheikh v Velji Narshi Shah, the court found no evidence supporting the claimant's explanations: the affidavit purportedly annexing a cause list had no such annexure, the claimant filed no affidavit confirming attendance, and the record did not show his presence. The record further showed the suit was dismissed on 6th April 2014, yet the application was filed on 19th June 2017 - a delay of over three years demonstrating a lack of interest in prosecuting the claim. The application was dismissed with no orders as to costs. Note: the judgment contains an internal inconsistency on the dismissal date (20th April 2017 versus 6th April 2014).

Key legal issues

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01

Whether the dismissal of the suit should be reviewed and set aside and the suit reinstated

Holding

The application was dismissed for want of merit.

Reasoning

The court applied the Birket v James principles on dismissal for want of prosecution. The claimant's explanation that counsel was engaged before other judges was unsupported - the affidavit purportedly annexing a cause list had no such annexure, and the court record did not show the claimant attended court. Further, the record showed the suit was dismissed on 6th April 2014, yet the application was filed on 19th June 2017, an inordinate delay of over three years, indicating lack of diligence and interest in prosecuting the claim.

p. 3
02

Counsel's conduct in failing to attend court or arrange a hold brief

Holding

Counsel acted recklessly but this did not excuse the delay.

Reasoning

While the court observed that counsel who was engaged in other courts ought to have instructed another counsel to hold his brief, this lapse did not outweigh the claimant's own inordinate delay of over three years in moving the court after dismissal, and the absence of evidence supporting the alleged reasons for non-attendance.

p. 2

Legal principles established

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  • A party whose suit is dismissed and who does not move the court for three years cannot claim to still be interested in fixing the suit for hearing; inordinate and unexplained delay defeats an application for reinstatement.
  • In reinstatement applications the court considers whether the delay is inordinate, intentional, contumelious, an abuse of process, whether it risks a fair trial or causes prejudice, and what the interests of justice dictate.

Court orders

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  1. 1.The application for reinstatement of the suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 63(e)
  • Industrial Court ActSection 12(1)(a)
  • Constitution of KenyaArticle 159(2)

Cases cited (5)

  • D.T. Dobie & company (Kenya) Limited -vs- Joseph Mbaria Muchina & Another
    Court Appeal No. 37 of 1978
  • Consolata Ndunda Owira -vs- Bannnelboris Omumbia B.P. Kubo
    HCCC 2050 of 1993
  • Birket –V- James
    [1978] A.C. 297
  • Azhar Mohammed Sheikh & 8 others v Velji Narshi Shah & Another
    [2017] eKLR
  • Ivita vs. Kyumbu
    [1975]
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; 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, "James Yanga Yeswa v Bob Morgan Services Limited (Cause 1367 of 2014)  (Employment and Labour) [2019] KEELRC 2366 (KLR)", Case Analysis (2019). Notice of Motion Application dated 24th April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2366/eng@2019-02-08

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