Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedEmployment Cause (Memorandum of Claim dated 9th November 2015; application for reinstatement) — number not stated in judgment· [2020] KEELRC 960 (KLR)

Christopher Otieno v Load Trailers (E.A.) Limited [2020] KEELRC 960 (KLR)

Employment and Labour Relations Court
29 May 2020
3,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to revive a wrongful dismissal suit because the claimant and his lawyer waited too long and showed no real interest in pursuing the case.

What this practically means

#

Executive summary

#
The Claimant, whose wrongful termination claim was dismissed for non-attendance on 25th July 2018 by Abuodha J., applied by notice of motion under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules to set aside the dismissal. He explained through his Advocate's affidavit that counsel arrived late due to an emergency and was allegedly told by a court clerk that the matter had been taken out of the cause list, only discovering the dismissal when the matter came up on 11th July 2019. The Respondent opposed, citing inordinate and unexplained delay, archived files, and loss of witnesses. Onyango J applied the Birket v James principles. The court found that counsel did not disclose the nature of the emergency or identify the clerk, acted recklessly in not sending a holding brief or perusing the file, and that both the delay in prosecuting the suit and the delay in filing the reinstatement application were inordinate and inexcusable. The Claimant swore no personal affidavit and showed no interest in prosecuting the claim. Examining the Memorandum of Claim, the court found the claim concerned a 3-month probationary contract as SAP Administrator which, absent any pleaded renewal, abated naturally, leaving no triable issues. Reinstatement would only prejudice the Respondent. The application was dismissed with costs to the Respondent. Judgment was delivered remotely under COVID-19 directions, the court relying on Article 159(2)(d), Article 48 and Section 1B of the Civil Procedure Act.

Key legal issues

#
01

Whether counsel's non-attendance and subsequent delay were excusable

Holding

The delay was inordinate and inexcusable; counsel was reckless in failing to send a holding brief or peruse the file

Reasoning

The court found the explanation of an emergency unsupported by particulars and the alleged statement by a court clerk unverified. Counsel failed to instruct another advocate or peruse the file. The application was filed over a year after dismissal, and a further month after discovery, both periods being inordinate and unexplained.

p. 4
02

Whether the claim had triable issues warranting reinstatement

Holding

No triable issues; the probationary contract abated naturally on its terms

Reasoning

The claim concerned wrongful termination of a 3-month probationary contract as SAP Administrator. Neither party mentioned renewal or extension, so the contract abated naturally. The Claimant did not personally depone to any interest in prosecuting the case, and the conduct showed disinterest, so reinstatement would only prejudice the Respondent.

p. 5
03

Whether the Claimant personally demonstrated interest in prosecuting the claim

Holding

He did not; no affidavit from the Claimant himself was sworn

Reasoning

The application was supported only by the Advocate's affidavit, despite the Claimant pleading a good case with triable issues. The Claimant did not explain his whereabouts on the hearing date or express any personal interest in prosecuting the case, indicating lack of faith in the claim.

p. 5

Legal principles established

#
  • Principles governing reinstatement of suits dismissed for want of prosecution: inordinate delay, whether delay is intentional/contumelious, abuse of process, risk to fair trial or prejudice, prejudice to plaintiff from dismissal, explanation offered, and the dictates of the interest of justice

Court orders

#
  1. 1.The Claimant's notice of motion application dated 15th August 2019 is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 12 Rule 7 of the Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Christopher Otieno v Load Trailers (E.A.) Limited [2020] KEELRC 960 (KLR)", Case Analysis (2020). Employment Cause (Memorandum of Claim dated 9th November 2015; application for reinstatement) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/960/eng@2020-05-29

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