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ELRCDismissedCause No 1615 of 2016· [2023] KEELRC 2198 (KLR)

Kieha v Kofinaf Company Limited (Cause 1615 of 2016) [2023] KEELRC 2198 (KLR)

Employment and Labour Relations Court
22 September 2022
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court by Notice of Motion dated 13th February 2023 seeking review and variation of the court's orders of 28th September 2021 dismissing his suit for want of prosecution, and reinstatement of the suit for hearing. Supported by an affidavit of his advocate, Kevin Seda, the Applicant contended that the dismissal order was made without notice to him or his advocate, that the hearing had concluded and only a summary of the case remained to be filed, and that he had real prospects of succeeding. The Respondent opposed through grounds of opposition, arguing laches, unexplained inordinate delay in filing the application, and failure to meet the review threshold, relying on authorities limiting review to patent errors on the face of the record. The court framed two issues: whether the review application was merited, and whether it was filed after inordinate delay. Applying rule 33(1) of the ELRC Rules, the court found the notice to show cause had been served on both advocates by email on 17th June 2021 per an affidavit of service on record, and that the Applicant had adduced no evidence of steps taken to ascertain the status of his case in the intervening two years; he therefore failed to show sufficient reason for review. Drawing on the Court of Appeal's decision in Patrick Wanyonyi Khaemba v Teachers Service Commission, the court held that delay requires a plausible and satisfactory explanation, and found the roughly two-year delay unreasonable and inordinate. The application was dismissed with each party meeting its own costs.

Key legal issues

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01

Whether the threshold for review under rule 33(1)(d) of the ELRC Rules was met

Holding

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

Reasoning

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.

p. 3
02

Whether the application was lodged after inordinate delay

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application for review of the orders of 28th September 2021 dismissing the suit is dismissed
  2. 2.Each party will meet its costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
  • ELRC RulesRule 33(1), 33(1)(d)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Trade Circles Limited v Family Bank Limited & another
    [2021] eKLR
  • Sergii Gergel v Arfa Afra Ltd t/a IMAX Africa Ltd
    [2020] eKLR
  • Ajit Kumar Rath -Versus- State of Orisa and Others
    on 02.11.1999
  • Elosy Murugi Nyaga vs Tharaka Nithi County Government & Another
    [2020] eKLR
  • Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others
    [2019] eKLR
  • Nicholas Kiptoo Arap Korir Salat (supra)
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

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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, "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.