Kennedy Owino Bwana & 5 others v Aqua Plumbing Company Limited [2021] KEELRC 1955 (KLR)
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
#Key legal issues
#Whether the Claimants' non-attendance on 16th December 2020 was excusable
No - the cause was properly listed for 16th December 2020 and the Claimants' advocate had notice; the claim of miscommunication was rejected as baseless
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.
Whether the discretion to reinstate should be exercised in the Claimants' favour
No - nothing was presented to justify revocation of the dismissal order
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.
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.The Claimants' notice of motion dated 6th January 2021 seeking reinstatement of the suit is dismissed
- 2.No order as to costs
- 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.