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ELRCAllowedCause No 36 of 2018· [2022] KEELRC 1478 (KLR)

Akomo v Light and Life Broadcasting Station (Cause 36 of 2018) [2022] KEELRC 1478 (KLR)

Employment and Labour Relations Court
2 June 2022
OMOnesmus N Makau
882 words in judgment
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The bottom line

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A Kenyan employment court reinstated a dismissed case because the worker was never served with notice, and allowed her to switch lawyers after judgment.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nakuru (Onesmus N Makau, J) on the claimant's notice of motion dated February 7, 2022. The application sought leave for Kioko & Gathoni Advocates to come on record in place of Obondo Kiongo & Company Advocates, review/setting aside of the order of November 9, 2021 dismissing the suit for want of prosecution, reinstatement of the suit, and costs in the cause. The claimant asserted she was not served with the notice to show cause, learned of the dismissal only after instructing new counsel following a breakdown in her relationship with her former advocate, and that no prejudice would be suffered by the respondent. The respondent, though served twice, did not oppose the application. The court framed two issues: whether leave should be granted to change advocate after judgment, and whether sufficient cause had been shown to warrant reinstatement. On the first, the court applied Order 9 rule 9 of the Civil Procedure Rules and granted leave given the breakdown in the advocate-client relationship. On the second, the court relied on Order 51 rule 15 of the Civil Procedure Rules and Rule 33(1) of the ELRC Procedure Rules, applied Shah v Mbogo [1967] EA 116, held the three-month delay not unreasonable, and found that the absence of an affidavit of service on the court record meant the claimant had not been served; the respondent did not rebut this contention. The court allowed the application as prayed, set aside the dismissal, reinstated the suit, and made no order as to costs. The ruling was delivered online pursuant to Covid-19 directives, with the parties waiving compliance with Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether leave should be granted to change advocate after judgment

Holding

Leave granted; the claimant's relationship with former counsel had broken down and no good reason existed to refuse leave.

Reasoning

Order 9 rule 9 of the Civil Procedure Rules requires court leave before changing advocates after final judgment. The claimant contended that her relationship with her former counsel had broken down. The court, considering the circumstances, saw no good reason to deny the change of advocates.

p. 2
02

Whether sufficient cause was shown to warrant reinstatement of the suit

Holding

Yes; the claimant was not served with the notice to show cause and no affidavit of service was on record, so the dismissal was set aside and the suit reinstated.

Reasoning

Under Order 51 rule 15 and Rule 33(1), a court may set aside a dismissal upon sufficient reason, applied promptly. A three-month delay was not unreasonable. Shah v Mbogo requires the discretion to be exercised to avoid injustice from accident, inadvertence or excusable mistake. The claimant was not served and the record contained no affidavit of service; the respondent did not rebut this, so sufficient ground was established.

p. 2

Legal principles established

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  • A party must obtain leave of the court before changing advocates after final judgment has been entered, under Order 9 rule 9 of the Civil Procedure Rules.
  • A delay of about three months in applying for review/reinstatement is not unreasonable in the circumstances.
  • Where no affidavit of service of the notice to show cause is on record, the applicant has established sufficient ground for review and setting aside of a dismissal order.

Court orders

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  1. 1.The firm of Kioko & Gathoni Advocates granted leave to come on record for the claimant in place of Obondo Kioko & Company Advocates.
  2. 2.The order of November 9, 2021 dismissing the suit is reviewed and set aside and the suit reinstated for hearing.
  3. 3.No order as to costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 51 rule 15
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (1)

  • Shah v Mbogo and another
    [1967] EA 116
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 33(1), and Order 51 rule 15 of the Civil Procedure Rules

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, "Akomo v Light and Life Broadcasting Station (Cause 36 of 2018) [2022] KEELRC 1478 (KLR)", Case Analysis (2022). Cause No 36 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1478/eng@2022-06-02

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