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ELRCAllowedCivil Appeal 124 of 2007· [2020] KEELRC 1092 (KLR)

Daniel Munyao v Eurocon Tiles Products Limited [2020] KEELRC 1092 (KLR)

Employment and Labour Relations Court
15 May 2020
MOMaureen Onyango
2,421 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a lawsuit cannot be dismissed for 'non-attendance' when the party's lawyer was present in court, and reinstated the case.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court, transferred from the High Court (Civil Appeal 124 of 2007) by direction of Thuranira J. on 18th July 2018, against a ruling of Senior Principal Magistrate E. N. Maina delivered on 2nd February 2009. The magistrate had dismissed the Appellant's suit in CMCC 5578 of 2006 for non-attendance on 13th November 2006, and later dismissed his application of 17th November 2006 seeking to set aside that order and reinstate the suit, holding that the hearing date had been fixed by consent and that the application was not made in good faith. The Appellant argued that his absence was an honest mistake arising from a mix-up of hearing dates and that counsel's mistake should not be visited on the client, relying on Belinda Murai v Amoi Wainaina. The Respondent maintained that the reasons given were afterthoughts and that the magistrate's discretion ought not be disturbed, citing Shah v Mbogo. Onyango J, exercising the court's appellate jurisdiction under Section 12(1) of the Employment and Labour Relations Court Act, framed three issues and held that the magistrate misdirected herself: counsel (Ms Onsare) was present holding brief, so there was attendance and dismissal for non-attendance under Order IXB Rule 2 was erroneous. The magistrate ought to have exercised her discretion under Section 3A of the Civil Procedure Act and Order IXB Rule 8 to set aside the order. The appeal was allowed, the order of 13th November 2006 set aside, the suit reinstated, with costs of the appeal in the cause.

Key legal issues

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01

Whether dismissal for non-attendance was warranted where counsel was present but the party was not

Holding

Dismissing the suit for non-attendance was erroneous because the Plaintiff was represented by counsel holding brief; non-attendance under Order IXB Rule 2 applies only where neither party nor advocate attends

Reasoning

The court distinguished non-attendance (neither party nor counsel attending) from failure to prosecute a suit despite attendance, relying on Channan Singh Chatthe. On 13th November 2006 Ms. Onsare was holding brief for the Plaintiff's counsel, so there was attendance for the Appellant. The Learned Magistrate therefore misguided herself in treating the Plaintiff's personal absence as non-attendance.

p. 3
02

Whether the Learned Magistrate erred in dismissing the application to set aside the dismissal order

Holding

The Learned Magistrate erred; she ought to have exercised her discretion under Section 3A of the Civil Procedure Act and Order IXB Rule 8 to set aside the order, and her failure occasioned an injustice

Reasoning

Having found the original dismissal wrongful, the court held the magistrate should have exercised her inherent power to set aside the order upon such terms as are just. Her failure to do so wrongfully applied the law and occasioned injustice, warranting appellate interference since the discretion was exercised on an erroneous premise.

p. 3

Legal principles established

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  • Where a litigant has instructed an advocate, the advocate's presence in court constitutes attendance and does not amount to non-attendance by the litigant
  • An appellate court will interfere with the exercise of the trial court's discretion where the court misdirected itself and arrived at an erroneous decision

Court orders

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  1. 1.The appeal is allowed
  2. 2.The order made on 13th November 2006 dismissing the suit is set aside
  3. 3.An order is made reinstating the Appellant's suit
  4. 4.The costs of the appeal shall be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1B
  • Revoked Civil Procedure RulesOrder IXB Rule 2
  • Revoked Civil Procedure RulesOrder IXB Rule 4(1)
  • Revoked Civil Procedure RulesOrder IXB Rule 8
  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Belinda Murai & Others v Amoi Wainaina
    [1979] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • Peters v Sunday Post Limited
    [1958] EA 424
  • Channan Singh Chatthe & 5 others v Delphis Bank Limited (Now Oriental Commercial Bank Limited)
    [2011] eKLR
  • Mbogo & Another v Shah
    EA [1968]
On appeal from
Senior Principal Magistrate's Court (CMCC 5578 of 2006)
CMCC 5578 of 2006
Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act - appellate jurisdiction over employment and labour relations matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Munyao v Eurocon Tiles Products Limited [2020] KEELRC 1092 (KLR)", Case Analysis (2020). Civil Appeal 124 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1092/eng@2020-05-15

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