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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 1626 (KLR)

Amos Mwangi Kihara v Saikabe Construction Company Limited [2021] KEELRC 1626 (KLR)

Employment and Labour Relations Court
8 June 2021
HWHellen Wasilwa
1,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated an employee's suit dismissed for non-attendance, ruling that a single missed hearing shouldn't deny a diligent claimant their day in court.

What this practically means

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Executive summary

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The claimant, Amos Mwangi Kihara, moved the Employment and Labour Relations Court by Notice of Motion under section 16 of the Employment and Labour Relations Court Act seeking reinstatement of his suit, which was dismissed on 5th February 2020 for non-attendance, and its transfer to the Chief Magistrate's Employment and Labour Relations Court division. He explained that his advocate arrived at 9:15 am and he himself at 9:30 am, the cause being listed second last, and that the court had called the matter out of turn before the mentions listed for the day. The respondent, through its director Benard Kariuki Njenga, opposed, asserting the claimant's advocate knew the matter was listed as number 5 for hearing, that court commenced at 9:00 am, and that counsel ought to have arranged for someone to hold her brief. The claimant relied on authorities including Lia Gloria Makya v Bridge International Academies, Burhani Decorators v Morning Foods, Fredrick Otieno Gudo v Apparel EPZ, Utalii Transporters v NIC Bank, and Joshua Kulei v Republic, urging the court to be guided by Article 159(2) and Order 12 Rule 7. The court found that the claimant had diligently prosecuted the suit, attending all mentions except the date of dismissal, and had promptly filed a reinstatement application the following day. Holding that disallowing the application would occasion a miscarriage of justice, the court allowed the application and reinstated the suit for hearing on the merits, with costs in the cause. The transfer prayer was not expressly addressed.

Key legal issues

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01

Whether to reinstate a suit dismissed for non-attendance under the court's discretion

Holding

The application was allowed; the claimant demonstrated diligence by attending all mentions except the date of dismissal and by promptly filing a reinstatement application on 6/2/2020.

Reasoning

The court examined the parties' averments and found the claimant had prosecuted the case diligently, being present at all mentions except 5/2/2020, and had moved swiftly the following day to seek reinstatement. This demonstrated diligence and determination, and dismissing the claim would deny the claimant a hearing on the merits, amounting to a miscarriage of justice. No prejudice by the respondent outweighed this.

p. 3

Legal principles established

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  • Disallowing reinstatement where a claimant has diligently pursued the cause risks a miscarriage of justice; dismissal for non-attendance should be set aside in the interest of a hearing on the merits.

Court orders

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  1. 1.The application is allowed and the suit dismissed on 5th February 2020 is reinstated to be heard on merit
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of KenyaArticle 159(2)
  • Civil Procedure Actsection 3A
  • Magistrates Court Act No. 26 of 2015section 9(b)

Cases cited (8)

  • Lia Gloria Makya v Bridge International Academies
    [2020] eKLR
  • Philip and Another v Augustine Kibedo
  • Burhani Decorators and Contractors v Morning Foods Limited and Another
    (2014) eKLR
  • Fredrick Otieno Gudo v Apparel EPZ Limited
    (2018) eKLR
  • Transami (K) Limited v Sokhi International (K) Ltd
    Unreported
  • Utalii Transporters Company Limited v NIC Bank & another
    [2014] eKLR
  • Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
  • Joshua Chelelgo Kulei v Republic & 9 others
    [2014] eKLR
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act; Order 12 Rule 7 of the Civil Procedure Rules; Article 159(2) 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, "Amos Mwangi Kihara v Saikabe Construction Company Limited [2021] KEELRC 1626 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1626/eng@2021-06-08

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