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ELRCDismissed· [2020] KEELRC 1354 (KLR)

Constantine Kaneke Cheronye v H. Young Company (EA) Limited [2020] KEELRC 1354 (KLR)

Employment and Labour Relations Court
5 March 2020
NMNzioki wa Makau
795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to reinstate a suit dismissed for non-attendance, because the claimant had a record of missing hearings and unpaid costs.

What this practically means

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Executive summary

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This was a ruling on the Claimant's notice of motion dated 26th September 2019 seeking to set aside orders of 27th June 2019 by which his suit was dismissed for non-attendance. The Claimant argued through his advocate Mr. Ngugi that counsel had requested the file and found it could not be traced, that the mistake of counsel should not be visited on the client, that the Claimant attended court showing willingness to pursue the matter, and that the claim had a high chance of success with no prejudice to the Respondent. The Respondent, through a replying affidavit sworn by legal officer Veronica Njoki and counsel Mr. Onsare, opposed the motion, asserting that the Claimant and his advocate were present at call over, confirmed readiness, but were absent when the matter was allocated a hearing time of 11.00am, prompting the Respondent's successful application for dismissal. The court, per Nzioki wa Makau J, applied the established discretionary principles in Patel v E.A. Cargo Handling Services Ltd and Shah v Mbogo. It found the Claimant's explanation disingenuous, noting that the file of a cause-listed matter would ordinarily be in court, and that the Claimant had previously obtained an adjournment on condition of paying Kshs. 1,000/- costs, which remained unpaid, with an order of no further adjournment. The motion was found hopelessly devoid of merit and dismissed with costs to the Respondent.

Key legal issues

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01

Discretion to set aside dismissal for non-attendance

Holding

The discretion is wide but not available to a party whose absence is unexplained and who has a history of non-compliance; the Claimant's motion was dismissed

Reasoning

The court found it undisputed that the Claimant and his advocate were absent at call over and when the case was called for hearing. Counsel's claim that he could not trace the file at the Registry was rejected as disingenuous, since a listed matter's file would ordinarily be in court. The Claimant had earlier obtained an adjournment on condition of paying Kshs. 1,000/- costs and an order of no further adjournment, which he had not complied with. Applying Patel and Shah v Mbogo, the discretion would not be exercised in his favour.

p. 2

Legal principles established

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  • The discretion to set aside ex parte orders is wide, its main concern being to do justice to the parties
  • The discretion to set aside is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Court orders

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  1. 1.The Claimant's notice of motion dated 26th September 2019 seeking to set aside the dismissal orders of 27th June 2019 is dismissed
  2. 2.Costs of the motion awarded to the Respondent

Authorities

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Cases cited (2)

  • Patel v E.A. Cargo Handling Services Ltd
    [1974] EA 75
  • Shah v Mbogo
    [1967] EA 166
Jurisdiction invoked
Original employment and labour relations jurisdiction; discretionary power to set aside ex parte orders under the applicable court rules

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, "Constantine Kaneke Cheronye v H. Young Company (EA) Limited [2020] KEELRC 1354 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1354/eng@2020-03-05

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