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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 474 (KLR)

Esther Nyaruai Kabau Wanyoike v George Sichangi & another [2020] KEELRC 474 (KLR)

Employment and Labour Relations Court
18 September 2020
MOMAUREEN ONYANGO
1,183 words in judgment
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The bottom line

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A Kenyan employment court reinstated a dismissed lawsuit because there was no proof the claimant was ever served with a hearing notice.

What this practically means

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Executive summary

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The Claimant's suit was dismissed on 2nd April 2019 for want of prosecution and non-appearance by the parties. The Claimant, Edward Omulama Onditi, applied by notice of motion supported by an affidavit sworn on 11th May 2020 for orders setting aside that dismissal, reinstating the suit, fixing a hearing date, and for costs. The Respondent filed no response and only the Applicant filed written submissions. The Applicant explained her pursuit of a hearing date: the 2019 court diary was closed, a date fixed for 26th February 2020 failed because the Deputy Registrars were away at a seminar, and a date of 20th April 2020 failed due to the COVID-19 pandemic. She denied ever receiving the hearing notice for 2nd April 2019. The court framed a single issue: whether the Applicant was entitled to the orders sought. Relying on Rule 22 of the Employment and Labour Relations Court (Procedure) Rules, the court held that dismissal for failure to attend court presupposes service of a hearing notice and an affidavit of service. The hearing notice on record bore no stamps and no affidavit of service was filed, so there was no evidence of service. The court allowed the application, set aside the dismissal order of 2nd April 2019, reinstated the suit, and ordered costs of the application to be in the cause. The ruling was delivered virtually at Nairobi on 18th September 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Whether the suit dismissed for non-attendance on 2nd April 2019 should be set aside and reinstated

Holding

The application succeeds; the dismissal order is set aside and the suit reinstated because there is no evidence of service of the hearing notice

Reasoning

The court noted that the claim was dismissed under Rule 22(2) of the ELRC (Procedure) Rules for failure to attend court. That rule presupposes service of a hearing notice with an affidavit of service on record. The hearing notice on record bore no stamps proving service and there was no affidavit of service, so the Applicant was not shown to have been served with notice of the 2nd April 2019 hearing, justifying setting aside the dismissal.

p. 2

Legal principles established

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  • A suit cannot be dismissed for non-attendance unless there is evidence that the hearing notice was served on the parties, supported by an affidavit of service

Court orders

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  1. 1.The orders of 2nd April 2019 dismissing the suit are set aside
  2. 2.The suit is reinstated
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment and Labour Relations Court (Procedure) RulesRule 16(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 22
  • Employment and Labour Relations Court RulesOrder 22(2)
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Ibrahim Athman Said v Ibrahim Abdille Abdullah & Another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 22

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, "Esther Nyaruai Kabau Wanyoike v George Sichangi & another [2020] KEELRC 474 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/474/eng@2020-09-18

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