Mang’ati v ABSA Bank Limited ((Formerly Barclays Bank Of Kenya Limited)) (Cause 162 of 2020) [2023] KEELRC 1228 (KLR)
The bottom line
#A Kenyan employment suit dismissed for missing a virtual court hearing stayed dismissed because the claimant waited passively instead of following up on his own case.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to be admitted into a virtual court session constitutes sufficient cause for non-attendance
It did not, because the court called the case twice and confirmed neither claimant nor counsel was present; the blame heaped on the court was a lame excuse
The judge, personally controlling the virtual session, called the case twice, checked the lobby and attendance list, and confirmed neither party was present. Counsel had taken the hearing date and served the notice, so his awareness was not in doubt. The claimant, though aware of the hearing date, was a bystander waiting to be prompted by his counsel. The authorities on technological glitches were distinguishable because here counsel heaped all blame on the court.
The nature of judicial discretion in reinstatement applications
Discretion is not to be granted as of right and must be exercised guided by law and explained rationally; the claimant failed to discharge the burden of showing sufficient cause
Relying on Black's Law Dictionary, the court observed that judicial discretion is exercised based on fairness under the circumstances and guided by legal rules and principles, and must not be 'dished out as candy'. The party seeking reinstatement must establish sufficient cause, a question of fact determined on the varied circumstances of each case, per Wachira Karani v Bildad Wachira.
Legal principles established
#- A party seeking reinstatement of a suit dismissed for non-attendance bears the burden of establishing sufficient cause for the absence
- A case belongs to the litigant, not the advocate, who bears primary responsibility for prosecuting the case
- A diligent litigant follows up on their case without waiting to be prompted
Court orders
#- 1.The claimant's application dated January 20, 2023 is disallowed
- 2.The suit stands dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Original employment jurisdiction; Court Rules rule 22(2); Article 159(2) of the Constitution invoked by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mang’ati v ABSA Bank Limited ((Formerly Barclays Bank Of Kenya Limited)) (Cause 162 of 2020) [2023] KEELRC 1228 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1228/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.