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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 1862 (KLR)
Patrick Kamau Kariru v Geofarthom Drilling Co. Ltd & another [2020] KEELRC 1862 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This was an interlocutory ruling of the Employment and Labour Relations Court at Nairobi, delivered by Radido Stephen Judge on 24 January 2020, in a cause in which a decree of Kshs 455,000/- for breach of contract had earlier been awarded to the Claimant on 13 April 2017. Execution was set aside on 21 March 2018 after an objection to attachment. The Claimant then applied on 5 February 2019 for orders that the 1st Respondent produce its books of account for inspection and that its directors submit to oral examination. That application was dismissed on 2 July 2019 for the Claimant's absence and lack of an affidavit of service. A reinstatement application filed on 29 August 2019 came up on 17 October 2019 but an adjournment was sought and refused for want of explanation for non-service. The Claimant then filed the instant application on 5 November 2019 seeking reinstatement of the 29 August 2019 application, contending that it had not been traced in the court file, that the misplaced affidavit of service had been traced, and that the Respondents would suffer no prejudice. The Respondents opposed, asserting the Claimant's indolence and late service of hearing notices. The Court found the Claimant had been indolent throughout, but reluctantly allowed the application and reinstated the dismissed application on condition that the Claimant pay thrown away costs of Kshs 10,000/- within 7 days, in default of which the application would stand dismissed automatically. The ruling disposed of the reinstatement application only; the substantive claim remains pending.
Key legal issues
#01
Whether the Claimant's indolence warranted dismissal of the reinstatement application
Holding
The Court agreed the Claimant had been indolent but nonetheless reluctantly reinstated the dismissed application on conditions.
Reasoning
The Claimant failed to file an affidavit of service for the hearing scheduled for 2 July 2019 and served the hearing notice for the 29 August 2019 application only two days before the hearing. Despite this indolence, the Court exercised its discretion to reinstate, conditioned on payment of thrown away costs of Kshs 10,000/- within 7 days, failing which the application would stand dismissed automatically.
p. 1
Legal principles established
#- A court may reinstate a dismissed application on terms, including payment of thrown away costs, notwithstanding the applicant's indolence.
Court orders
#- 1.Application dated 4 November 2019 allowed and the application dated 4 February 2019 reinstated
- 2.Reinstatement conditional on the Claimant paying the Respondents thrown away costs of Kshs 10,000/- within 7 days, in default the application stands dismissed without further court orders
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to reinstate a dismissed application (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Kamau Kariru v Geofarthom Drilling Co. Ltd & another [2020] KEELRC 1862 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1862/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.