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ELRCPartially AllowedELRC No. 211 of 2018 (consolidated suit)· [2023] KEELRC 1706 (KLR)

Ogenche & another v Kisii University (Cause 210 & 211 of 2018 (Consolidated)) [2023] KEELRC 1706 (KLR)

Employment and Labour Relations Court
6 July 2023
MOMaureen Onyango
1,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated two sacked staff members' claims against Kisii University, ruling a suit cannot be dismissed without proof the dismissal notice was served.

What this practically means

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Executive summary

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The Claimants, former staff of Kisii University, applied by notice of motion dated January 20, 2023 to set aside the dismissal of their consolidated employment claims for want of prosecution. The suit had been dismissed after their counsel failed to attend court in response to a Notice of Dismissal for Want of Prosecution. The Claimants deponed that their advocate was never served with the notice, that the parties had been in successful settlement negotiations resulting in partial payment to one Claimant, and that they only learned of the dismissal when served with a taxation notice in January 2023. The Respondent, through its Assistant Legal Officer Seth Ong'uti, opposed the application, contending the Claimants were indolent and that negotiations do not bar prosecution of a suit. Both parties filed written submissions. The court adopted the test in Mwangi S Kaimenyi v Attorney General & Another, considering whether the delay was intentional, contumelious, inordinate, inexcusable, or prejudicial. The court found the Claimants had explained their inaction by reference to negotiations evidenced by a letter dated November 25, 2021 in which the Respondent admitted and offered to settle the claims. On perusal of the court record, the court confirmed there was no certificate or affidavit of service of the dismissal notice on the Claimants' counsel. The delay in filing the application was also explained by the Claimants' ignorance of the dismissal. The court held it unconscionable for the Respondent's counsel to conceal ongoing negotiations. The dismissal orders of November 7, 2022 were set aside and the suit reinstated, with no order for costs due to the Respondent's reprehensible conduct.

Key legal issues

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01

Whether there is justifiable cause to set aside the dismissal of the suit for want of prosecution

Holding

The dismissal was set aside because the Claimants explained their non-attendance: settlement negotiations had resulted in partial settlement, and there was no proof of service of the dismissal notice

Reasoning

Applying the Mwangi S Kaimenyi test, the court found the delay was neither intentional nor contumelious. The Claimants produced a letter from the Respondent admitting liability and offering settlement, removing any need to fix the suit for hearing. The court record showed no certificate or affidavit of service of the dismissal notice, and the Claimants learned of the dismissal only upon being served with a taxation notice. The Respondent's concealment of ongoing negotiations was unconscionable, and the delay in filing the application was sufficiently explained.

p. 4

Legal principles established

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  • A dismissal for want of prosecution cannot stand where there is no proof of service of the notice to show cause on the claimant's counsel
  • A suit need not be fixed for hearing where the parties are engaged in settlement negotiations that have resulted in partial settlement admitted by the respondent

Court orders

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  1. 1.The orders of dismissal of the Claimants' suit for want of prosecution made on November 7, 2022 are set aside and the suit is reinstated
  2. 2.No orders for costs

Authorities

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Cases cited (5)

  • Mwangi S Kaimenyi v Attorney General & Another
    Misc Civil Suit No 720 of 2009
  • Rose Makokha Mteka v Oserian Development Co Ltd
    [2022] eKLR
  • Utalii Transport Company Limited & 3 Others v NIC Bank & Another
    [2014] eKLR
  • Mohamed Jamaa Ali v Chairman, KNUT Garissa Branch and Another
    [2021] eKLR
  • Fredrick Otieno Gudo v Africa Apparel EPZ Limited
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Ogenche & another v Kisii University (Cause 210 & 211 of 2018 (Consolidated)) [2023] KEELRC 1706 (KLR)", Case Analysis (2023). ELRC No. 211 of 2018 (consolidated suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1706/eng@2023-07-06

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