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ELRCDismissedNot stated in judgment

Zaverio Bundi M’thiruaine v National Cereals & Produce Board [2022] KEELRC 198 (KLR)

Employment and Labour Relations Court
10 March 2022
MMM. Mbaru
748 words in judgment
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The bottom line

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Kenya's Employment Court refused to revive an employment claim dismissed after the claimant's lawyer missed the hearing date, ruling no good cause was shown.

What this practically means

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Executive summary

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The claimant applied by notice dated 19th February 2021 to set aside an order of 26th January 2021 dismissing his claim for want of prosecution. The dismissal arose when the respondent's application dated 22nd July 2020 came up for hearing and neither the claimant nor his advocate attended, counsel claiming to have mis-diarised the matter for 25th February 2021, confusion allegedly stemming from a 1st December 2020 mention when the advocate was handling an ELC matter. The claimant argued he was condemned unheard and should not suffer for his advocate's mistake, relying on Shah v Mbogo and Patriotic Guards Ltd v Sambu. The respondent, through the affidavit of its company secretary John Ng'etich, countered that no sufficient cause was shown, the mis-diarisation claim was unverifiable and manufactured, and the claimant had been allocated a date and failed to attend, relying on Captain Philip Ongom v Catherine Nyero Owotta, Wachira Karni v Bildad Wchira and Rose Wambui Gikonyo v Ismael Juma Matiku. The court found the supporting affidavit was the claimant's, while the advocate whose diary was allegedly mis-diarised swore no affidavit; the diary extract was not primary evidence and matters of fact cannot be addressed by a third party. The claimant, having been allocated a hearing date, was not condemned unheard. The application dated 19th February 2021 was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant demonstrated sufficient cause to justify setting aside the order of 26th January 2021 dismissing the suit for want of prosecution
  2. 2.Whether the claimant was condemned unheard when the suit was dismissed in his non-attendance
  3. 3.Whether the mistake/mis-diarisation of the advocate should be visited on the client

Key legal issues

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01

Sufficient cause for setting aside dismissal for want of prosecution

Holding

No sufficient cause was established

Reasoning

The claimant was allocated a hearing date for 26th January 2021 and failed to attend. The claimed mis-diarisation was not proved because the advocate whose diary was in question did not swear an affidavit, and a diary extract is not primary evidence. Matters of fact cannot be addressed by a third party, so the mis-diarisation claim could not be relied upon.

p. 2
02

Whether the claimant was condemned unheard

Holding

He was not; he was given an opportunity for a hearing and failed to attend

Reasoning

The court held that justice cuts both ways and that failure to attend a date appointed touches access to justice and the rule of law. The claimant had notice of the hearing date and did not attend, so his dismissal was for good cause and not a denial of hearing.

p. 2

Legal principles established

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  • A party seeking to set aside dismissal for want of prosecution must demonstrate good cause for non-attendance; non-attendance after being allocated a hearing date is not being condemned unheard

Court orders

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  1. 1.The application dated 19th February, 2021 is dismissed
  2. 2.Costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the memorandum of claim; interlocutory application for setting aside dismissal order

Relief refused

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Setting aside the order of 26th January 2021 dismissing the claim for want of prosecution

No good cause shown for non-attendance; supporting materials (diary extract) were not the claimant's and not primary evidence

p. 2

Costs

Costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Matters of fact cannot be addressed by a third party. The diary extract is not primary evidence.
p. 2Evidential weight of advocate's diary extract
Failure to attend court on a date appointed is key to access to justice and rule of law. Justice cuts both ways.
p. 2Duty of parties to attend court
The suit herein was dismissed for good cause. The court finds no matter for setting aside the order of dismissal of suit.
p. 2Refusal to set aside dismissal
Application dated 19th February, 2021 is hereby dismissed. Costs to the respondent.
p. 2Final orders and costs

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, "Zaverio Bundi M’thiruaine v National Cereals & Produce Board [2022] KEELRC 198 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/198/eng@2022-03-10

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