Libasia v J.C.B. Ventures Ltd (Cause 431 of 2015) [2022] KEELRC 477 (KLR)
The bottom line
#A Kenyan employment court reinstated a suit dismissed after a lawyer missed a virtual hearing due to network problems, but imposed strict deadlines and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the suit for non-attendance at a virtual hearing should be set aside
The dismissal was set aside; the Claimant was given a conditional reinstatement of the suit with a strict timeline and throw away costs.
The Court noted the unprecedented times of virtual hearings during the Covid-19 pandemic, where network interruptions may prevent attendance through no fault of a party. Although the Respondent rightly observed that the Claimant had not sworn a personal affidavit confirming readiness to proceed, the Court declined to hold that against the Claimant, guided by the constitutional right to a fair hearing under Article 50(1) and the equitable approach in Philip Keipto Chemwolo that defaults short of fraud should be cured by costs rather than denying a party a hearing on the merits.
Whether the absence of an affidavit from the Claimant himself confirming readiness to proceed defeated the application
No; the Court acknowledged the point but declined to hold it against the Claimant/Applicant.
Counsel for the Respondent deponed that the Claimant had not sworn an affidavit to prove he was ready to proceed on 3rd November 2021. The Court accepted this as rightly deponed but exercised its discretion in favour of reinstatement, resting instead on the constitutional right to be heard and the realities of virtual court proceedings, while protecting the Respondent through throw away costs and a fixed prosecution window.
Legal principles established
#- Where a party fails to attend Court on the day fixed for hearing, the Court may dismiss the suit except for good reasons to be recorded, under Rule 22(2) of the ELRC (Procedure) Rules 2016
- The right to be heard is enshrined in Article 50(1) of the Constitution and is so crucial that mistakes or defaults not founded on fraud or intention to overreach should ordinarily be put right by payment of costs
- In the era of virtual proceedings occasioned by the Covid-19 pandemic, care must be taken to ensure injustices are not visited on parties based on matters beyond their control
Court orders
#- 1.The dismissal order dated 3rd November 2021 is recalled and set aside
- 2.The Claimant shall prosecute the suit within six (6) months from the date of the Ruling, failing which the suit shall stand dismissed
- 3.The Claimant shall, within thirty (30) days of the Ruling, pay Ksh.10,000 to the Respondent as throw away costs of the application
- 4.The case to be mentioned in Court on 30/3/2022 for purposes of fixing a hearing date
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules 2016, Rule 22(2), with Article 50(1) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Libasia v J.C.B. Ventures Ltd (Cause 431 of 2015) [2022] KEELRC 477 (KLR)", Case Analysis (2022). Not stated in the ruling as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/477/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.