John Waweru Njenga & 5 others v Motor Botique Limited [2020] KEELRC 332 (KLR)
The bottom line
#A Kenyan employment court reinstated a suit dismissed after a lawyer's diary mistake, but ordered the litigants to pay the other side Kshs. 10,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated good cause for setting aside dismissal for non-attendance
Yes - the non-attendance was due to a genuine clerical diarization error, not negligence or deliberate delay; the application was filed without unreasonable delay; and denying the applicants a hearing would be more prejudicial than reinstatement.
Rule 22(2) of the ELRC Procedure Rules permits dismissal for non-attendance except for good cause. Following James Kanyiita Nderitu and Shah v Mbogo, the court examined whether the failure was deliberate or due to excusable mistake. The diary annexure supported the applicants' explanation; counsel learned of the dismissal on 27.11.2019 and moved by 3.12.2019. Prejudice to the respondent from the 7-year-old suit could be remedied by costs.
Whether reinstatement should be conditional on terms
Yes - reinstatement was granted upon throw-away costs of Kshs. 10,000 to the respondent to remedy any prejudice from the delay.
The court held that discretion to set aside must be exercised upon terms. Although the respondent faced possible difficulty securing witnesses and documents after seven years, it did not show the prejudice could not be cured by costs, so a throw-away costs order sufficed.
Legal principles established
#- A suit dismissed for non-attendance may be saved where the applicant demonstrates good cause, including that non-attendance was due to inadvertence or honest mistake, the application was made without unreasonable delay, the suit is meritorious, and the balance of prejudice favours reinstatement.
- The discretion to set aside ex parte or default decisions is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.
- The discretion to set aside ex parte regular judgment must be exercised upon terms, such as throw-away costs, to remedy prejudice to the opposite party.
Court orders
#- 1.The Order made on 18.11.2019 dismissing the suit for non-attendance is hereby set aside
- 2.The suit is hereby reinstated for hearing and determination on merit
- 3.A hearing date be granted on priority basis given the age of the matter
- 4.The Applicants to pay the respondent Kshs. 10,000 being throw-away costs before the hearing date
- Jurisdiction invoked
- Rule 22(2) of the Employment and Labour Relations Court (Procedure) Rules and the court's inherent jurisdiction to review and set aside its orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Waweru Njenga & 5 others v Motor Botique Limited [2020] KEELRC 332 (KLR)", Case Analysis (2020). Notice of Motion dated 29.11.2019 (ELRC suit, consolidated series, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/332/eng@2020-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.