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ELRCAllowedCause No 953 of 2018· [2023] KEELRC 987 (KLR)

Ochieng v Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others (Cause 953 of 2018) [2023] KEELRC 987 (KLR)

Employment and Labour Relations Court
28 April 2023
SRSTELLA RUTTO
1,503 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 an employment suit dismissed when the claimant's lawyer missed a hearing, showing courts will undo dismissals caused by honest mistakes.

What this practically means

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Executive summary

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The Claimant moved the Employment and Labour Relations Court at Nairobi by a Notice of Motion dated May 6, 2022, seeking review and setting aside of the court's orders of May 5, 2022 dismissing his suit for non-attendance, and reinstatement for inter partes hearing. The application, brought under Sections 1, 1A and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 50 of the Civil Procedure Rules and Article 159 of the Constitution, was supported by the affidavit of Oduor Henry, counsel on record, who explained that he was held up in another matter at the ELRC in Mombasa. The Respondents opposed through a replying affidavit sworn by their advocate, John Kisigwa, contending that the Claimant took the hearing date ex parte, that his absence amounted to indolence, and that they stood to be prejudiced by relitigation. Both parties filed written submissions. The sole issue framed was whether the Court should review its dismissal orders of May 5, 2022. Relying on Shah vs Mbogo (1979) EA 116, Stella Rutto J held that reinstatement is a matter of judicial discretion to be exercised judiciously to avoid injustice from inadvertence or excusable mistake. The Court found counsel's reasons plausible, corroborated by the Respondents' advocate and the exhibited cause list, and noted the Claimant moved the Court the day after dismissal. It also invoked John Nahashon Mwangi vs Kenya Finance Bank Limited, stressing that dismissal is a draconian act. The application was allowed, the suit reinstated with a 30-day prosecution direction, and costs of the application awarded to the Respondents, payable by the Claimant.

Key legal issues

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Whether the dismissal of the Claimant's suit for non-attendance on May 5, 2022 should be set aside and the suit reinstated

Holding

The Application was allowed; the reasons for counsel's non-attendance were found plausible and the dismissal was a draconian act inconsistent with the court's duty to serve substantive justice.

Reasoning

The Court applied Shah vs Mbogo, holding that discretion to reinstate is meant to avoid injustice from inadvertence or excusable mistake. Counsel's non-attendance was corroborated by the Respondents' Advocate, who confirmed speaking to him, and by a cause list showing counsel was attending another matter at ELRC Mombasa. The Claimant filed the application the day after dismissal, showing diligence. The Court was also mindful that dismissal drives a litigant from the seat of justice.

p. 3

Legal principles established

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  • The decision whether to reinstate a suit dismissed for non-attendance is an exercise of judicial discretion, to be exercised judiciously on the facts of each case to avoid injustice or hardship resulting from inadvertence or excusable mistake, but not to assist deliberate obstruction or delay.
  • Dismissal of a suit for want of prosecution is a draconian act that should be resorted to sparingly.

Court orders

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  1. 1.The Application dated May 6, 2022 is allowed and the suit dismissed on May 5, 2022 is reinstated
  2. 2.The Claimant is directed to take concrete steps to prosecute the matter within the next 30 days, in default of which the suit shall stand dismissed with costs
  3. 3.The Claimant shall bear the costs of this Application

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3A, 1B
  • Civil Procedure RulesOrder 12 Rule 7, Order 50, Order 21 Rule 1
  • Constitution of KenyaArticles 48, 159, 159(2)(d)

Cases cited (2)

  • Shah vs Mbogo
    (1979) EA 116
  • John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
Jurisdiction invoked
Sections 1, 1A & 3A of the Civil Procedure Act, Order 12 Rule 7 & Order 50 of the Civil Procedure Rules and Article 159 of the Constitution

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, "Ochieng v Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others (Cause 953 of 2018) [2023] KEELRC 987 (KLR)", Case Analysis (2023). Cause No 953 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/987/eng@2023-04-28

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