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ELRCPartially AllowedELRC Cause (Eldoret) - application dated 14th August 2018· [2021] KEELRC 1245 (KLR)

Paul K. Langat v Kenya Defence Forced 9th Batallion & another [2021] KEELRC 1245 (KLR)

Employment and Labour Relations Court
8 July 2021
HWHELEN WASILWA
1,072 words in judgment
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The bottom line

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Kenya's Employment Court reinstated a dismissed case, ruling a worker should not lose their claim because their lawyer failed to attend court.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret, delivered virtually on 8th July 2021 by Lady Justice Hellen Wasilwa, determined the claimant's application dated 14th August 2018 seeking: (a) leave for the firm of Mogire Nyamwaya and Associates Advocates to come on record in place of Alwanga & Company Advocates; (b) setting aside of the orders of 14th November 2017 dismissing the suit for want of prosecution and reinstatement of the suit; and (c) costs in the cause. The claimant explained that his former advocate, travelling from Eldoret, arrived late on 14th November 2017, leading to dismissal for non-attendance, and that he only learned of the dismissal later; he relied on Order 9 Rule 9 of the Civil Procedure Rules, Article 50 of the Constitution, Mbogo v Shah and Wachira Karani v Bildad Wachira. The respondent, through a replying affidavit by Frankline Oyese Omuse, opposed, citing a series of non-attendances from 24th January 2017, the claimant's indolence, the filing of a similar suit at Eldoret (ELRC Cause 269 of 2018) apparently to avoid limitation and res judicata, prejudice from lost witnesses, and authorities including Edney Adaka Ismail v Equity Bank, J.G Builders v Plan International and Tirth Construction v Orion Hotels. After written submissions, the court held that former counsel 'did a poor job' and, because a litigant has a right to counsel of choice and should not suffer for counsel's mistakes, allowed the application and reinstated the suit, with Mogure Nyamaya's firm on record. Costs were awarded in the cause. The respondent's objections on indolence and res judicata were not resolved on the merits.

Key legal issues

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01

Whether dismissal for want of prosecution should be set aside

Holding

Application allowed; suit reinstated because the claimant's right to counsel of choice outweighs the dismissal occasioned by former counsel's non-attendance

Reasoning

The court found on the record that the former advocate repeatedly failed to attend court, culminating in the dismissal of 14th November 2017. Applying the principle that a mistake of counsel ought not to be visited on an innocent client, and invoking the court's discretion as in Mbogo v Shah, the judge exercised discretion in favour of reinstatement to allow the claimant to prosecute the suit on its merits.

p. 2
02

Whether the claimant's indolence and the parallel Eldoret suit (ELRC 269 of 2018) should bar reinstatement

Holding

Rejected; the court did not act on the res judicata/indolence objections

Reasoning

The respondent argued the claimant was indolent, had filed a similar suit in Eldoret to defeat limitation and res judicata, and that equity does not aid the indolent, relying on Edney Adaka Ismail, J.G Builders and Tirth Construction. The judge did not engage with these submissions, instead concluding the poor performance of counsel justified reinstatement.

p. 2

Legal principles established

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  • A litigant should not be condemned for the mistakes of his counsel and has a right to be represented by counsel of choice

Court orders

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  1. 1.Application dated 14th August 2018 allowed
  2. 2.Claimant's suit dismissed on 14th November 2017 reinstated for hearing, with the firm of Mogire Nyamwaya and Associates Advocates acting on record

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 9 Rule 9
  • Constitution of Kenya 2010Article 50
  • Employment and Labour Relations Court (Procedure) RulesRule 16

Cases cited (5)

  • Mbogo -v- Shah
    [1968] EA
  • Wachira Karani –v- Bildad Wachira
    [2016] eklr
  • Edney Adaka Ismail –v- Equity Bank Limited
    [2014] eklr
  • J.G Builders –v Plan International
    [2015] eklr
  • Tirth Construction Limited –v- Orion Hotels Limited
    [2020] eklr
Jurisdiction invoked
Inherent discretion to set aside dismissal for want of prosecution; Order 9 Rule 9 of the Civil Procedure Rules 2010 and Article 50 of the Constitution

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, "Paul K. Langat v Kenya Defence Forced 9th Batallion & another [2021] KEELRC 1245 (KLR)", Case Analysis (2021). ELRC Cause (Eldoret) - application dated 14th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1245/eng@2021-07-08

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