Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2021] KEELRC 90 (KLR)

Fidelis Omwamba Onsongo & 1648 others v Tailors & Textile Workers Union & another [2021] KEELRC 90 (KLR)

Employment and Labour Relations Court
14 December 2021
NMNzioki wa Makau
744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Employment Court refused to reinstate a case dismissed after lawyers logged into a virtual hearing late, ruling lateness is not an excusable mistake.

What this practically means

#

Executive summary

#
The Claimants moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 24th November 2021, brought under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 13 and 3A of the Civil Procedure Act and Section 12(3)(i) of the Employment and Labour Relations Court Act. They sought, among other things, to restrain the 2nd Respondent from deducting union dues or agency fees, to set aside orders issued on 22nd November 2021 by Justice Nzioki wa Makau dismissing their application dated 3rd November 2021, and to have that application reinstated for hearing on merit. The 1st Respondent, through its National General Secretary Rev. Joel Kandie Chebii, opposed the motion, deponing that the Claimants' counsel logged into the virtual session at 2:30pm instead of the allocated 2:00pm, resulting in dismissal for want of attendance and prosecution, and that the Claimants only contacted the registry the following day. The court held that the Claimants' own affidavit admitted lateness, that failure to attend court at the designated time is not an excusable mistake capable of supporting reinstatement, and that equity aids the vigilant and not the indolent. Observing that in the Covid era remote attendance removes travel as a cause of lateness, the court found the application devoid of merit, misconceived and a waste of judicial time, and dismissed it with costs to the 1st Respondent.

Key legal issues

#
01

Whether non-attendance due to lateness in a virtual court session qualifies as excusable mistake for reinstatement under Order 12 Rule 7

Holding

It does not; the dismissal orders of 22nd November 2021 stand and the application for reinstatement was dismissed with costs

Reasoning

The court found the Claimants admitted lateness in their supporting affidavit. In the Covid era, remote attendance removes travel as a cause for lateness, so parties must appear at the times directed. The Claimants also failed to act vigilantly by contacting the registry only the next day instead of following up on the day of the hearing. The court concluded the application was misconceived and a waste of judicial time and dismissed it with costs to the 1st Respondent.

p. 2

Legal principles established

#
  • Equity aids the vigilant and not the indolent; lateness in attending court at the directed time is not an excusable mistake warranting reinstatement

Court orders

#
  1. 1.Application dismissed with costs to the 1st Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 13
  • Civil Procedure ActSection 3A
  • Employment and Labour Relations Court ActSection 12(3)(i)
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 13 and 3A of the Civil Procedure Act, and Section 12(3)(i) of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fidelis Omwamba Onsongo & 1648 others v Tailors & Textile Workers Union & another [2021] KEELRC 90 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/90/eng@2021-12-14

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