Benedict Wechuli v Navakholo Constituency Development Fund & another [2021] KEELRC 2185 (KLR)
The bottom line
#A Kenyan employment court reinstated a dismissed lawsuit because the claimant's lawyer was never served with the hearing notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be reinstated after dismissal for want of prosecution
The application to set aside the dismissal has merit because the claimant's advocate was never served with the hearing notice and the claimant honestly misrecorded the hearing date as 17/10/2019, attending on that day to find the suit dismissed.
The court considered the review application and the respondents' replying affidavit. It found that Mr. Momanyi, the claimant's advocate, had not been served with the hearing notice for 7/10/2019, and that the respondents' advocates did not disclose this fact. The claimant had recorded the date as 17/10/2019 and attended court on that day only to find the suit dismissed. The explanation was satisfactory and the dismissal was accordingly set aside.
Candour of the respondents' advocates in seeking dismissal
The respondents' advocates did not disclose to the court that the claimant's advocate had not been served with the hearing notice, relying only on the claimant's absence.
The court observed that the respondents' advocates relied solely on the fact that the claimant, who had been present at the last appearance, did not attend on 7/10/2019, without disclosing that Mr. Momanyi had not been served. This non-disclosure undermined the application for dismissal and supported reinstatement of the suit.
Legal principles established
#- An advocate not served with a hearing notice cannot be fixed with the consequences of non-attendance, and the court may reinstate a suit dismissed on that basis.
Court orders
#- 1.The suit dismissed on 7/10/2019 for want of prosecution is reinstated
- 2.The matter to be fixed for hearing and heard on priority basis if not otherwise settled by the parties
- 3.Costs in the cause
- Jurisdiction invoked
- Review jurisdiction over its own order dismissing a suit; civil procedure (order dismissing suit for want of prosecution, review application dated 20/11/2019); Article 159(2)(d) and Article 48 of the Constitution invoked in the delivery order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benedict Wechuli v Navakholo Constituency Development Fund & another [2021] KEELRC 2185 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2185/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.