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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 2359 (KLR)

Augustine Ojiambo v Brinks Security Services Limited [2021] KEELRC 2359 (KLR)

Employment and Labour Relations Court
27 April 2021
971 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant filed an application dated 8th February 2021 seeking to set aside an order of 4th February 2021 dismissing the suit for non-attendance, and to have the suit reinstated for hearing on a priority basis. Counsel for the claimant, Mr Upendo Ignacious Allan, averred that he experienced technical hitches on his gadget while trying to access the virtual proceedings and could not address the court when the matter was called, and that the claimant should not be punished for his advocate's mistake. The respondent, through its human resource manager Raymond Nzioka, opposed the application, contending that advocates have used virtual courts since 2020, that no effort was made to report the alleged hitch to the court or to the respondent, that the application was supported only by the advocate and not the claimant, and that the 2016 matter should be dismissed with costs. The court held that dismissal for non-attendance is a serious, final order requiring cogent reasons to vacate, citing Stephen Mwangi Kimote v Murata Sacco Society and related authority establishing that such dismissal amounts to a judgment. Examining the court returns and cause list, the court noted both a virtual link and a court assistant's telephone number were available, and counsel made no attempt to use either. Balancing the age of the 2016 matter against the need for a hearing on the merits, the court allowed the application conditionally: the dismissal was lifted, but the claimant must pay the respondent's assessed costs of Ksh.20,000 before a hearing date is allocated, with the suit to stand dismissed if there is inaction for 30 days as of 2nd June 2021.

Key legal issues

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01

Whether technical hitches during virtual proceedings justify reinstatement of a suit dismissed for non-attendance

Holding

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.

Reasoning

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.

p. 2
02

Whether a claimant should be punished for the mistake of his advocate

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Application dated 8th February 2021 allowed
  2. 2.Order of 4th February 2021 dismissing the suit lifted
  3. 3.Claimant to pay respondent Ksh.20,000 as costs of dismissal, to be paid before allocation of a hearing date
  4. 4.Claimant to be allocated a hearing date at the registry upon payment
  5. 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

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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, "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.