Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 2083 of 2016· [2021] KEELRC 1955 (KLR)

Kennedy Owino Bwana & 5 others v Aqua Plumbing Company Limited [2021] KEELRC 1955 (KLR)

Employment and Labour Relations Court
3 March 2021
714 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

#

Kenya's Employment Court refused to reinstate a claim dismissed after the claimants missed their hearing date, blaming an internal court miscommunication.

What this practically means

#

Executive summary

#
The Claimants moved the court by notice of motion dated 6th January 2021 seeking to set aside an order of 16th December 2020 by Nzioki wa Makau J dismissing their claim for want of prosecution following their non-attendance, and to reinstate the part-heard claim for hearing on merits, with costs in the cause. They attributed their non-attendance to communication from the Deputy Registrar's office indicating the matter would be listed on 17th December 2020, asserting they had always been ready and willing to prosecute the case. The court, applying CMC Holdings Limited v Nzioki [2004] 1 KLR 173 on the judicious exercise of discretion in setting aside orders, examined the cause list of 16th December 2020 (including its addendum) and the record of directions given on 27th October 2020 when the Claimants' advocate attended before Deputy Registrar D. Mutai. It found no indication the matter was to be heard by Rika J and concluded the matter was properly listed on 16th December 2020. The court held the Claimants' explanation was a feeble attempt to float a ship that has sunk, that the suit stood dismissed for non-attendance, and that nothing justified revocation of the dismissal. The motion to reinstate was dismissed with no order as to costs, per the ruling delivered at Nairobi on 3rd March 2021.

Key legal issues

#
01

Whether the Claimants' non-attendance on 16th December 2020 was excusable

Holding

No - the cause was properly listed for 16th December 2020 and the Claimants' advocate had notice; the claim of miscommunication was rejected as baseless

Reasoning

The court examined the cause list of 16th December 2020 including the addendum, and the record of directions given on 27th October 2020 when Ms. Orengo attended before the Deputy Registrar. It found no indication the matter was to be heard by Rika J, and concluded the alleged miscommunication by the Deputy Registrar did not excuse non-attendance. The reasons advanced were characterized as a feeble attempt to revive a dead claim.

p. 2
02

Whether the discretion to reinstate should be exercised in the Claimants' favour

Holding

No - nothing was presented to justify revocation of the dismissal order

Reasoning

Applying CMC Holdings Limited v Nzioki, the court noted that discretion to set aside must ensure a litigant does not suffer injustice from an excusable mistake. Here the court found no excusable mistake or inadvertence; the suit was properly dismissed for non-attendance, so the discretion was properly exercised by refusing reinstatement.

p. 2

Legal principles established

#
  • A court reinstating a suit dismissed for want of prosecution exercises a discretion that must be exercised judiciously to avoid injustice or hardship from an excusable mistake; where the litigant shows no excusable mistake, the dismissal stands

Court orders

#
  1. 1.The Claimants' notice of motion dated 6th January 2021 seeking reinstatement of the suit is dismissed
  2. 2.No order as to costs

Authorities

#

Cases cited (1)

  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Discretionary power to reinstate a suit dismissed for want of prosecution (inherent discretion of the ELRC); no specific provision stated

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kennedy Owino Bwana & 5 others v Aqua Plumbing Company Limited [2021] KEELRC 1955 (KLR)", Case Analysis (2021). Cause No 2083 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1955/eng@2021-03-03

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