Perez Jeptekeny Kemboi v Moi Teaching & Referal Hospital & another [2022] KEELRC 1008 (KLR)
The bottom line
#A Kenyan employment court can reinstate a dismissed case, but refused here because the claimant's new lawyer lacked proper authority and she waited over four years.
What this practically means
#Executive summary
#Key legal issues
#Whether the court was functus officio and lacked jurisdiction to reinstate the dismissed suit
The court is not functus officio; it has discretion to reinstate a suit dismissed for want of prosecution for good cause shown and upon terms as to costs.
The ELRC Procedure Rules 2016 are silent on reinstatement after dismissal for non-attendance. The court turned to Order 51 Rule 15 of the Civil Procedure Rules, which permits setting aside a dismissal, and to precedent establishing that a court has unfettered discretion to set aside its decisions, including regular judgments, to avoid injustice.
Whether the application was incompetent for breach of Order 9 Rule 9 of the Civil Procedure Rules
The application was incompetent because it was brought by a new advocate without leave of the court or a consent between the outgoing and incoming advocates.
Order 9 Rule 9 requires that a change of advocates after judgment take effect only upon a court order on application with notice, or upon a consent filed between the outgoing and incoming advocates. The record showed neither a request for leave nor a consent; the incoming advocate merely forwarded a Notice of Change of Advocates with the application, so the application was incompetent.
Whether the application was filed after inordinate delay
The delay of more than four years from dismissal on 1.3.2017 to the application of 2.11.2021 was unreasonable and inordinate, contrary to the 'reasonable time' requirement of Rule 33 of the ELRC Procedure Rules 2016.
Rule 33 permits review within reasonable time on limited grounds. The dismissal occurred on 1.3.2017 and the application was filed on 2.11.2021, a gap of over four years. The court held such a delay obviously unreasonable and inordinate, which independently justified refusing the relief sought.
Whether the application had merits
The court declined to consider the merits, having found the application incompetent and delayed, and dismissed it.
Having determined both preliminary obstacles - incompetence under Order 9 Rule 9 and inordinate delay - the court exercised its discretion not to reach the substantive merits of the reinstatement request and dismissed the motion, with no costs.
Legal principles established
#- The ELRC has jurisdiction, and is not functus officio, to reinstate a suit dismissed for want of prosecution or non-attendance for a good cause shown, and upon terms as to costs.
- A delay of more than four years in applying to set aside or review an order is unreasonable and inordinate delay.
Court orders
#- 1.The Notice of Motion dated 2.11.2021 seeking reinstatement of the suit dismissed for want of prosecution is dismissed
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act Cap 234B and other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Perez Jeptekeny Kemboi v Moi Teaching & Referal Hospital & another [2022] KEELRC 1008 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1008/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.