Kieha v Kofinaf Company Limited (Cause 1615 of 2016) [2023] KEELRC 2198 (KLR)
The bottom line
#A Kenyan employment court refused to revive a dismissed lawsuit because the claimant waited two years and offered no credible explanation for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under rule 33(1)(d) of the ELRC Rules was met
The application was not merited; the Claimant alleged he was not served with the notice to show cause, but an affidavit of service on record confirmed service by email on both advocates, and no evidence of steps taken to ascertain the status of the case was provided
The court applied rule 33(1) of the ELRC Rules, which allows review for discovery of new matter, error apparent on the face of the record, need for clarification, or any other sufficient reason. The Claimant relied on paragraph (d) but offered only the assertion of a good chance of success. The court found the claim of non-service contradicted by the affidavit of service sworn by the court's process server confirming email service on 17th June 2021, and noted the absence of any evidence of diligence during the two years following dismissal.
Whether the application was lodged after inordinate delay
Yes; the application was lodged about two years after dismissal without justification, and the court declined to exercise its discretion to vary the dismissal orders
The court traced the litigation history: claim filed in 2016, referred to court-annexed mediation in 2019, and dismissed on 28th September 2021 when only the Respondent's advocate attended. Relying on the Court of Appeal's decision in Patrick Wanyonyi Khaemba, the court held that delay must be explained by plausible and satisfactory reasons. The Claimant offered no explanation for the two-year delay in bringing the review application, so the delay was unreasonable and inordinate.
Legal principles established
#- Review under rule 33(1)(d) requires a sufficient reason; an applicant who fails to take reasonable steps to ascertain the status of his case and does not justify the delay has not met the threshold
- Delay must be explained by a plausible and satisfactory explanation; no minimum or maximum period of delay is fixed but unexplained delay is inordinate
Court orders
#- 1.The application for review of the orders of 28th September 2021 dismissing the suit is dismissed
- 2.Each party will meet its costs
- Jurisdiction invoked
- Rule 33(1) of the ELRC Rules (review jurisdiction); Article 159(2)(d) and Article 48 of the Constitution referenced in the delivery orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kieha v Kofinaf Company Limited (Cause 1615 of 2016) [2023] KEELRC 2198 (KLR)", Case Analysis (2022). Cause No 1615 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2198/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.