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ELRCAllowedNot stated in judgment· [2022] KEELRC 181 (KLR)

Martin L Barasa v Giza Systems Smart Solutions Ltd [2022] KEELRC 181 (KLR)

Employment and Labour Relations Court
31 March 2022
SRStella Rutto
2,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court reinstated a worker's dismissed case, ruling that procedural mistakes shouldn't deny anyone their day in court.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Nairobi (Stella Rutto, J) on an application dated 26th November 2021 by the Claimant, Martin L. Barasa, seeking reinstatement of his suit dismissed on 25th November 2021 for non-attendance at a virtual hearing, which he attributed to network challenges. The Respondent opposed the application, arguing it was defective for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules (the Claimant having filed a Notice to Act in Person without leave or consent while a firm of advocates, Samuel Nyambane & Co. Advocates, was on record) and with Rule 33(3) of the Court's Rules (failure to annex the dismissal order sought to be reviewed), and asserting breach of its right to a fair trial under Article 50. The court accepted that a dismissal constitutes a judgment, following Njue Ngai vs Ephantus Njiru and Peter Ngome vs Plantex, so Order 9 Rule 9 was engaged. However, it held that the advocate on record had never substantively acted for the Applicant, the non-attendance was inadvertent within Shah vs Mbogo principles, the application was filed timeously, and no prejudice would befall the Respondent. Guided by Section 3 of the ELRC Act and Philip Chemwolo, the court exercised its discretion in the Applicant's favour, set aside the dismissal of 25th November 2021, reinstated the suit, and directed the Applicant to set it down for hearing within 30 days, failing which it would stand dismissed. No costs order was made.

Key legal issues

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01

Whether a dismissal order is a 'judgment' within Order 9 Rule 9 CPR

Holding

Yes; the term 'judgment' extends to a dismissal order, which is deemed a final decree.

Reasoning

Relying on the Court of Appeal's decision in Njue Ngai vs Ephantus Njiru, which adopted Peter Ngome vs Plantex Company Limited, the court held that a judgment is a judicial determination on the main question in a proceeding and includes a dismissal of a suit for non-attendance or want of prosecution. Accordingly, a party moving from representation to acting in person after such a dismissal requires leave or consent under Order 9 Rule 9.

p. 2
02

Whether the Applicant's procedural non-compliance should defeat reinstatement

Holding

No; the discretion to set aside dismissal was exercised in the Applicant's favour.

Reasoning

The court applied Shah vs Mbogo, CMC Holdings vs Nzioki and Philip Chemwolo vs Augustine Kubende, finding the non-attendance inadvertent (network challenges) and the application filed timeously. The advocate on record had never substantively acted for the Applicant. Non-compliance with Order 9 Rule 9 and Rule 33(3) was not fatal, and no prejudice would befall the Respondent, consistent with Section 3 of the ELRC Act.

p. 3

Legal principles established

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  • A dismissal of a suit amounts to a judgment for purposes of Order 9 Rule 9 of the Civil Procedure Rules.
  • Procedural default should not defeat a litigant's right to be heard where the failure was inadvertent and the application was filed timeously.

Court orders

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  1. 1.The order of dismissal of 25th November, 2021 is set aside
  2. 2.The suit is reinstated
  3. 3.The Applicant to take concrete steps and set down the suit for hearing within 30 days from the date of the Ruling, failing which the suit will stand dismissed

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesRule 33(3) (ELRC Rules)
  • Employment and Labour Relations Court ActSection 3
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Shah vs Mbogo & another
    (1976); [1967] EA 116
  • Njue Ngai vs Ephantus Njiru & Anor
    [2016] eKLR
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • CMC Holdings Limited vs Nzioki
    [2004] 1 KLR 173
  • Philip Chemowolo & Another vs Augustine Kubende
    [1982-88] 1 KAR 103
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 3

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Martin L Barasa v Giza Systems Smart Solutions Ltd [2022] KEELRC 181 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/181/eng@2022-03-31

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