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ELRCDismissedNot stated in judgment· [2020] KEELRC 723 (KLR)

Bakari Abdalla Tunya v Modern Coast (K) Ltd [2020] KEELRC 723 (KLR)

Employment and Labour Relations Court
16 July 2020
LNLinnet Ndolo
948 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reinstate a dismissed lawsuit because the claimant's lawyer swore a false affidavit, and ordered the lawyer to pay costs personally.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo J) on the Claimant's Notice of Motion dated 27th September 2019 seeking variation or setting aside of the order of 25th September 2019 dismissing his suit for non-attendance, reinstatement of the suit for hearing, and costs. The application was supported by an affidavit of the Claimant's Counsel, Gloria Nduku Advocate, who deponed that she had diarised the hearing date as 26th September 2019 instead of 25th September 2019. The Respondent's Counsel, Peter Omwenga Advocate, countered that the Claimant's Advocate was not in court on 29th January 2019 when the hearing date was taken, that a hearing notice had been served, and that her affidavit was false. Examining the court record, the Court found no representation for the Claimant on 29th January 2019, concluded that the Claimant's Counsel had lied on oath and had not responded to the damaging allegations. Relying on Peter Kiplagat Rono v Family Bank Limited, Bains Construction Co. Ltd v John Mzare Ogowe, and the JKUAT case, the Court held that its discretion relieves against excusable mistake, not deliberate falsehood, and that an application supported by an affidavit infested with falsehoods merits no exercise of discretion. The Court declined to delve into perjury as a criminal matter. The application was dismissed with costs awarded personally against the Claimant's Counsel.

Key legal issues

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01

Whether mistakes of Counsel warrant setting aside an order dismissing a suit for non-attendance

Holding

No; the discretion exists to relieve against excusable mistake but not where the application is dishonest, and not every inaction by an Advocate is excusable

Reasoning

The Court invoked Peter Kiplagat Rono v Family Bank Limited on the purpose of the discretion, and Bains Construction and the JKUAT case on mistakes of Counsel. On examining the record, the Claimant's Counsel's sworn claim that she was in court on 29th January 2019 was contradicted by the court record showing no representation for the Claimant that day. Her failure to respond to the Respondent's damaging allegations confirmed the falsehoods.

p. 2
02

Effect of an affidavit infested with falsehoods on an application seeking discretionary relief

Holding

The application fails; the Court will not exercise its discretion in favour of a party whose application is supported by a false affidavit

Reasoning

The Court found the supporting affidavit did not reflect what transpired on the ground. Though it declined to pursue perjury as a criminal offence in a civil application, it held that the falsehoods meant there was nothing placed before the Court to justify exercising its discretion in the Claimant's favour.

p. 2

Legal principles established

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  • The Court's discretion to set aside dismissal orders is intended to relieve against accident, inadvertence or excusable mistake, not to aid deliberate obstruction or delay
  • Not every inaction by an Advocate is an excusable mistake worthy of the Court's sympathy
  • An application supported by an affidavit containing falsehoods cannot invoke the Court's discretion

Court orders

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  1. 1.The Claimant's application dated 27th September 2019 is dismissed
  2. 2.The costs of the application will be met by Counsel for the Claimant

Authorities

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Cases cited (3)

  • Peter Kiplagat Rono v Family Bank Limited
    [2018] eKLR
  • Bains Construction Co. Ltd v John Mzare Ogowe
    [2011] eKLR
  • The Council, Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera and 3 others
    [2015] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; discretionary review of the court's own order of 25th September 2019 dismissing the suit for non-attendance

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, "Bakari Abdalla Tunya v Modern Coast (K) Ltd [2020] KEELRC 723 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/723/eng@2020-07-16

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