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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 88 (KLR)

Oluchiri v Marvelous Furnitures (Cause 432 of 2016) [2023] KEELRC 88 (KLR)

Employment and Labour Relations Court
19 January 2023
AMAnna N. Mwaure
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court reinstated a claim dismissed for delay, but only on strict conditions including prompt payment of costs.

What this practically means

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Executive summary

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This was a Notice of Motion dated 19 October 2021 seeking review, variation and setting aside of an order of Mwaure J of 18 October 2021 dismissing the claimant's claim (filed 18 March 2016) for want of prosecution, reinstatement of the claim, and a priority hearing date. The application, supported by an affidavit of Bernard Were, advocate for the claimant, explained that notices were still being sent to the former advocates, and that on the relevant date the advocate could not join a virtual session in good time due to internet challenges, by which time the claim had been dismissed. The respondent, through advocate Samuel Patrick Kibuchi, opposed, contending there was no tenable explanation for the laxity, the claimant having failed to prosecute the suit for over 14 months after filing and a further 24 months after attending court on 2 May 2019. Applying Ivita v Kyumbu and CMC Holdings Ltd v Nzioki, the court held it had latitude to set aside ex parte orders on sufficient cause, and that although it had misgivings about the prolonged delay, locking a party out of a case is weighty, the application was brought promptly (a day after dismissal), and no prejudice to the respondent was shown. The court allowed the application, reinstated the suit, and ordered the claimant to pay Kshs 10,000/- throw away costs within 30 days failing which reinstatement would lapse, with a hearing date to be fixed on priority basis within 90 days.

Key legal issues

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Whether the dismissal for want of prosecution should be set aside and the claim reinstated

Holding

Yes - reinstatement granted on conditions despite misgivings about delay

Reasoning

Although the claim filed in 2016 suffered prolonged delays even before the second advocate came on record, the court held that locking a party out is weighty, the dismissal was on a day the applicant failed to join a virtual session, the application to set aside was filed a day after dismissal, and no prejudice was shown by the respondent. Reinstatement was granted in the interest of justice, subject to throw away costs and a fixed hearing timeline.

p. 3

Legal principles established

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  • A court may set aside its own ex parte order where sufficient cause is shown
  • Locking a party out of a case is a weighty step to be taken only where there is no alternative or deliberate obstruction

Court orders

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  1. 1.The order of 18th October 2021 dismissing the claim for want of prosecution is set aside and the suit reinstated
  2. 2.Claimant to pay Kshs 10,000/- throw away costs to the Respondent within 30 days, failing which the reinstatement lapses and the suit stands dismissed
  3. 3.After paying throw away costs the claimant to invite the respondent to fix a hearing date on priority basis
  4. 4.Deputy Registrar to avail a hearing date within 90 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Njega & Another versus Embu Gaturi Housing Co-op Soc Ltd and Another; Njogu (Applicant)
    Civil Appeal No 22 of 2014 (2022) KEHC 465 (KLR)
  • Martin L Barasa versus Giza Systems Smart Solutions Ltd
    (2022)
  • Ruga Distributors Limited versus Nairobi Bottlers Limited
  • Savings and Loans Limited versus Susan Wanjiru Muritu
    Nairobi HCCC 397/2002
  • Ivita v Kyumbu
    [1984] KLR 441
  • CMC Holdings Limited -vs- Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders for sufficient cause; Employment and Labour Relations Court (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, "Oluchiri v Marvelous Furnitures (Cause 432 of 2016) [2023] KEELRC 88 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/88/eng@2023-01-19

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