Robert Mugo Cyrus v Mathew Mugo Gacene t/a Gibs Estate Ltd,Gibs Ltd, Super Gibs Ltd [2020] KEELRC 1766 (KLR)
The bottom line
#The Employment Court in Nyeri refused to revive a lawsuit dismissed after both the claimant and his lawyer missed the hearing, because their explanations were unconvincing.
What this practically means
#Executive summary
#Key legal issues
#Whether the absence of the Claimant and his advocate was excusable
The absence was not excusable; the explanations (a washroom visit by counsel and a transport hitch by the Claimant) were unsubstantiated and unconvincing
The advocate was present when the hearing time was fixed yet left just before the call-over, suggesting no intention to proceed. The advocate's alleged washroom visit was not supported by an affidavit. The Claimant's explanation of a transport hitch was vague, and he gave no reason for going to Court 106 instead of the Employment Court. The court therefore found no merit in the explanations offered.
Whether the interests of justice warranted reinstatement of the suit
No - applying the Rutto factors, the delay and unexplained absence did not justify the lenient exercise of discretion
The court applied the six-factor test from Stephen Kipsang Rutto t/a Springwood College v Tanui Kipkirui & 2 Others, considering inordinate delay, inexcusable conduct, abuse of process, prejudice and the interests of justice. On the facts, the explanations failed and the motion was devoid of merit, so reinstatement was refused.
Legal principles established
#- An applicant seeking to set aside a dismissal for non-attendance must offer credible, substantiated explanations for the absence; unsworn assertions by counsel's absence do not suffice
Court orders
#- 1.The notice of motion dated 15th October 2019 seeking to set aside the dismissal order of 14th October 2019 is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Inherent discretion of the Employment and Labour Relations Court to set aside its own dismissal order for non-attendance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Mugo Cyrus v Mathew Mugo Gacene t/a Gibs Estate Ltd,Gibs Ltd, Super Gibs Ltd [2020] KEELRC 1766 (KLR)", Case Analysis (2020). Not stated in the judgment (notice of motion dated 15th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1766/eng@2020-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.