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ELRCDismissedNotice of motion dated May 17, 2022 in a statement of claim dated August 29, 2018 (cause filed August 31, 2018)· [2023] KEELRC 29 (KLR)

Tinega v National Cereals & Produce Board (Cause 234 of 2018) [2023] KEELRC 29 (KLR)

Employment and Labour Relations Court
19 January 2023
DNDAVID NDERITU
2,529 words in judgment
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The bottom line

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A Kenyan employment claimant who repeatedly missed hearings and ignored a costs order lost his 2018 case permanently — reinstatement was refused.

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 (Nderitu J) on a notice of motion dated May 17, 2022 in which the claimant sought reinstatement of his cause, dismissed on March 21, 2022 under Order 12 rule 3(1) of the Civil Procedure Rules for non-attendance at the hearing. The cause, filed in 2018, had suffered repeated adjournments attributable to the claimant's side, and on October 13, 2021 the court ordered the claimant to pay adjournment costs and witness attendance costs before the next hearing. The claimant never complied. Neither the claimant nor counsel attended the mention of January 24, 2022 or the hearing of March 21, 2022, though properly served; counsel's explanation was maternity leave. The reinstatement application was filed nearly two months after dismissal. The respondent opposed, arguing the applicant was indolent, disobedient of court orders and had lost interest. The court framed a single issue: whether the dismissal should be set aside. It held that the right to a fair trial, though listed under Article 25(c), can in some circumstances be limited under Article 24; that justice under Article 159 is owed to both employers and employees without delay; that attendance and payment of costs were the applicant's own duties, not counsel's; that the delay was inordinate, inexcusable and unreasonable; and that the applicant was clogging the justice system and violating the rights of other litigants. The application was dismissed with costs, and the main cause remains dismissed with costs to the respondent as ordered on March 21, 2022.

Key legal issues

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01

Whether the dismissal of the cause for non-attendance under Order 12 rule 3(1) should be set aside and the cause reinstated

Holding

The application for reinstatement fails; the cause remains dismissed

Reasoning

The applicant repeatedly failed to attend court (July 6, 2020, October 13, 2021, December 6, 2021, January 24, 2022, March 21, 2022), deliberately disobeyed an order to pay adjournment costs, and offered no explanation for his own non-attendance or for the two-month delay in filing the reinstatement application. Counsel's maternity leave did not excuse the applicant's absence, and the delay prejudices the respondent and clogs the justice system.

p. 4
02

Whether the applicant's right to a fair trial under Article 25(c) entitled him to reinstatement

Holding

The right to a fair trial, though non-derogable, may in some circumstances be limited or denied under Article 24 where reasonable and justifiable

Reasoning

The court held that the right to a fair trial is not absolute in practice; limitation is possible under Article 24 if reasonable and justifiable in an open and democratic society. Justice under Article 159 must be done to both parties without delay, and the applicant's own indolence and disobedience of court orders disentitled him from invoking the right to a hearing against the respondent's competing right to conclude the matter.

p. 3

Legal principles established

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  • The ELRC was created to do justice to all parties, employers and employees alike, in accordance with the law
  • Attendance in court and payment of costs as ordered are duties of the litigant, not of counsel
  • A litigant's right to be heard does not supersede the respondent's right to have the matter concluded, and abusing court process clogs the justice system
  • A litigant who fails to obey a valid court order may lose the right to be heard

Court orders

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  1. 1.The notice of motion dated June 17, 2022 (May 17, 2022) is dismissed with costs to the respondent
  2. 2.The main cause remains dismissed with costs to the respondent as ordered on March 21, 2022

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 rule 7; Order 12 rule 3(1)
  • Constitution of Kenya, 2010Article 159(2); Article 24; Article 25(c)
  • Employment and Labour Relations Court ActPreamble; section 3

Cases cited (5)

  • Philip Chemwolo & Another v Augustine Kubede
    (1982-88) KAR 103
  • Joseph Mweteri Igweta v Mukira M'ethare & Another
    (2002) eKLR
  • Mbogo & Another v Shah
    EALR 1908
  • Ivita v Kyumbu
    (1975) KLR 441
  • Nilani v Patel & Others
    (1969) EA 341
Jurisdiction invoked
Article 162(2) of the Constitution / Employment and Labour Relations Court Act (court's inherent jurisdiction over employment and labour relations disputes); application brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 rule 7 of the Civil Procedure Rules and Article 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Tinega v National Cereals & Produce Board (Cause 234 of 2018) [2023] KEELRC 29 (KLR)", Case Analysis (2023). Notice of motion dated May 17, 2022 in a statement of claim dated August 29, 2018 (cause filed August 31, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/29/eng@2023-01-19

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