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ELRCDismissed(not stated in judgment; suit pending since 2016, ELRC)· [2023] KEELRC 1093 (KLR)

Kathangani v Teachers Service Commission (Cause 1476 of 2016) [2023] KEELRC 1093 (KLR)

Employment and Labour Relations Court
19 April 2023
2,551 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 refused to reinstate a 2016 employment suit, ruling that litigants—not their advocates—bear responsibility for keeping their cases moving.

What this practically means

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Executive summary

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The Claimant/Applicant, a former employee seeking reinstatement of his employment claim, filed a Notice of Motion dated 28th October 2021 seeking to set aside orders made on 26th October 2021 dismissing his suit for want of prosecution. The application, supported by an affidavit of Mr. Elias Kibathi Advocate of Kiamah Kibathi & Co. Advocates LLP, blamed the non-attendance on the previous advocates, S.N Thuku and Company Advocates, who allegedly failed to forward the Notice to Show Cause. The Respondent, through the affidavit of its advocate Patrick Mulaku, opposed the application, contending that the Claimant bore the primary duty to prosecute his suit, had been indolent since 2016, and that reinstatement would prejudice it since it had raised a Preliminary Objection that the suit was time barred. The Claimant relied on authorities on advocate's mistake not being visited on the client, while the Respondent relied on authorities on inordinate delay and the maxim that equity does not aid the indolent. The court found that a Notice of Appointment of Advocates dated 22nd May 2019 showed S.N Thuku & Associates were on record, rejecting the Respondent's assertion to the contrary. Nevertheless, the court held that the litigant bears ultimate responsibility for prosecuting his own case; the suit had been in the court system since 2016 with no evidence of keenness, the Claimant never approached the registry, and neither he nor his counsel attended on the material date. The constitutional right to a hearing does not mean every case will be heard, and indolent suits must give way to diligently prosecuted ones. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether an advocate's mistake in failing to attend the Notice to Show Cause justifies reinstatement

Holding

The court accepted the Notice of Appointment showed S.N Thuku & Associates were on record (rejecting the Respondent's contrary claim), but held that the client bears ultimate responsibility for prosecuting his own suit and no evidence of diligence was shown

Reasoning

The court noted the Notice of Appointment of Advocates dated 22nd May 2019 proved S.N Thuku & Associates were on record, making the Respondent's assertion untrue. However, it held that once the suit is initiated, it is the Claimant's case and not his advocates'. The Claimant never approached the Court Registry or otherwise checked the suit's status despite over six years of inactivity. The advocate-mistake principle was therefore displaced by the Claimant's own indolence.

p. 4
02

Whether the right to a fair hearing mandates reinstatement

Holding

The constitutional right to a hearing does not guarantee that every case will be heard; it extends to the Respondent too, and indolent suits must give way

Reasoning

The court acknowledged the constitutional guarantees of fair trial and access to justice but held these apply equally to the Respondent. Cases showing no keenness to prosecute cannot be saved on the basis of the right to hearing, as court resources and other litigants' interests require prioritising diligently prosecuted matters.

p. 4
03

Whether the Respondent would suffer prejudice if the suit were reinstated

Holding

The claim for computation of retirement dues, gratuity and pension, and the Respondent's time-barred suit preliminary objection, constituted real prejudice

Reasoning

The Respondent's Replying Affidavit contended that reinstatement would prejudice it because the suit seeks retirement dues, gratuity and pension, and because the Respondent had filed a defence and a Preliminary Objection that the suit is time barred. The court's final finding on indolence rendered this question determinative against reinstatement.

p. 2

Legal principles established

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  • While the Constitution guarantees the right to a fair trial and access to justice, this does not mean every case will be heard; suits showing indolence must give way to those prosecuted diligently
  • A litigant, not the advocate, bears the ultimate responsibility of ensuring their suit is prosecuted

Court orders

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  1. 1.The Claimant/Applicant's Notice of Motion application dated 28th October 2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenyaright to fair trial and access to justice
  • Civil Procedure Rules, 2010Order 12 Rule 3(1)

Cases cited (9)

  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
  • Philip Keipto Chemwolo & another v Augustine Kubende
    [1986] eKLR, [1982-88] 1 KAR 103
  • Naftali Opondo Onyango v National Bank of Kenya Limited
    [2005] eKLR
  • Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another
    [2016] eKLR
  • Richard Ncharpi Leiyagu v IEBC & 2 others
    [2013] eKLR (CA 18/2013)
  • Ivita v Kyumbi
    [1984] KLR 441
  • Josephat Muthui Muli v Ezeetec Ltd
    [2014] eKLR (ELRC 1224 of 2012)
  • New Simba Security Guards v Kakamega Paper Converters Ltd
    [2011] eKLR
  • Ceres Estate Limited v Kieran Day & 4 others
    [2013] eKLR
Jurisdiction invoked
inherent jurisdiction of the Employment and Labour Relations Court to set aside dismissal orders; Order 12 Rule 3(1) of the Civil Procedure Rules, 2010 invoked by the Respondent

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, "Kathangani v Teachers Service Commission (Cause 1476 of 2016) [2023] KEELRC 1093 (KLR)", Case Analysis (2023). (not stated in judgment; suit pending since 2016, ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1093/eng@2023-04-19

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