Augustine Ojiambo v Brinks Security Services Limited [2021] KEELRC 2359 (KLR)
The bottom line
#A Kenyan employment court reinstated a dismissed suit, but only after the claimant agreed to pay costs because their lawyer failed to follow up during a virtual hearing glitch.
What this practically means
#Executive summary
#Key legal issues
#Whether technical hitches during virtual proceedings justify reinstatement of a suit dismissed for non-attendance
Mere assertion of technical hitches without effort to contact the court or opposing counsel does not constitute a cogent reason, but the court may nonetheless reinstate in the interest of hearing the matter on the merits, on terms as to costs.
The court reviewed the court returns and cause list for 4th February 2021 and found that parties had both a virtual link and a telephone contact for the court assistant. Counsel who encountered technical hitches made no attempt to use either option or to inform the respondent's counsel. The dismissal thus stood as a final order requiring cogent reasons. Weighing the claimant's eagerness and the age of the 2016 matter against the need to hear cases on merit, the court reinstated conditionally with costs of Ksh.20,000.
Whether a claimant should be punished for the mistake of his advocate
The claimant argued so, but the court conditioned reinstatement on payment of the respondent's costs, balancing the advocate's conduct with the claimant's right to be heard.
Although counsel's affidavit carried the application, the court considered the history of the matter, noting prior attendances by the claimant and the respondent's absences. To secure justice and a hearing on the merits, reinstatement was granted but on terms ensuring the respondent was compensated for attendance costs, with a 30-day inactivity clause to prevent further delay.
Legal principles established
#- An order dismissing a suit for non-attendance is a final order, and cogent reasons must be given to vacate it
- A dismissal of a suit for non-attendance amounts to a judgment in that suit
Court orders
#- 1.Application dated 8th February 2021 allowed
- 2.Order of 4th February 2021 dismissing the suit lifted
- 3.Claimant to pay respondent Ksh.20,000 as costs of dismissal, to be paid before allocation of a hearing date
- 4.Claimant to be allocated a hearing date at the registry upon payment
- 5.Suit to stand dismissed if there is inaction for 30 days, as of 2nd June 2021
- Jurisdiction invoked
- Inherent powers to reinstate a suit dismissed for non-attendance (Civil Procedure Act/Rules regime as applied by the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Augustine Ojiambo v Brinks Security Services Limited [2021] KEELRC 2359 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2359/eng@2021-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.