Collins Mango Egesa v Superior Homes (K) Limited [2020] KEELRC 1065 (KLR)

Employment and Labour Relations Court

22 May 2020

RSRadido Stephen

504 words in judgment

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The bottom line

What this practically means

Executive summary

The Claimant's employment Cause against Superior Homes (K) Ltd was dismissed on 15 October 2018 for non-attendance when the suit was called out for hearing. Nearly a year later, on 9 July 2019, the Claimant filed an application seeking reinstatement of the suit. That application was itself fixed for hearing on 26 September 2019, rescheduled by the Deputy Registrar to 6 November 2019, and on that date the Claimant and his advocate were absent; on the Respondent's request, the Court dismissed the reinstatement application. On 23 January 2020 the Claimant filed a further motion seeking to set aside that dismissal and restore the application for hearing. The Claimant explained that his advocate was before another court, that an assistant instructed to secure an advocate to hold brief arrived to find the application called out and dismissed, that the Court did not follow the cause list, and that the non-attendance was an innocent omission. The Respondent opposed, contending the Claimant had a history of disinterest in prosecuting the case. The Court held that the application required an exercise of discretion; it found the Claimant had not shown diligence, that the cause-list complaint was a red herring, and that the assistant who attended court neither swore an affidavit nor sought another advocate to hold brief. Nonetheless, the Court reluctantly allowed the application on terms: the Claimant to pay the Respondent wasted costs of Kshs 10,000/- within 10 days, failing which the application would stand dismissed. Judgment delivered on 22 May 2020 by Radido Stephen, Judge.

Key legal issues

Whether the Claimant's explanation for non-attendance justified exercise of the Court's discretion to restore the dismissed application

Holding

The application was allowed, but reluctantly and on terms, because the Court found the explanation partly credible but noted lack of diligence

Reasoning

The Court observed that reinstatement is an exercise of discretion. It found the Claimant had not exhibited diligence in prosecuting the case, that the cause-list complaint was a red herring, and that the advocate's assistant who attended court did not swear an affidavit or seek another advocate to hold brief. Nonetheless, the discretion was exercised in the Claimant's favour conditional on payment of wasted costs within 10 days, failing which the application would stand dismissed.

p. 1

Legal principles established

Reinstatement of a suit dismissed for non-attendance is discretionary and may be granted on terms, including payment of wasted costs, but requires diligence from the applicant

Court orders

1.The application to set aside the dismissal of the reinstatement application and restore it for hearing is allowed on terms
2.The Claimant to pay the Respondent thrown away/wasted costs of Kshs 10,000/- within 10 days
3.In default of payment, the application will stand dismissed

Jurisdiction invoked: Inherent discretion of the Employment and Labour Relations Court to reinstate a suit dismissed for non-attendance (no specific constitutional/statutory provision stated in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Collins Mango Egesa v Superior Homes (K) Limited [2020] KEELRC 1065 (KLR)", Case Analysis (2020). Cause No 1286 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1065/eng@2020-05-22

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