Obwogon v Marula Estate (Employment and Labour Relations Cause 82 of 2017) [2023] KEELRC 2332 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court reinstated a dismissed employment case because the claimant was never properly served with the dismissal notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the cause dismissed for want of prosecution should be reinstated
The application was allowed: the dismissal order of October 14, 2021 was set aside because the claimant and his counsel were not proved to have been served with the NTSC, and neither party nor the court was free of blame for the delay.
The court noted the cause lay dormant over a year, including during the Covid period when virtual hearings operated under gazette notice No 3137 of March 20, 2020. However, the NTSC issued by the Deputy Registrar had no affidavit of service authenticating service on the claimant or his counsel; the emailing sheet showed only the respondent's counsel was served, and the claimant's name was wrong on the NTSC. Both parties and the court contributed to the delay, so justice favoured reinstatement with a priority hearing.
Legal principles established
#- The court's discretion to reinstate a dismissed cause must be exercised judiciously, considering whether the claimant has lost interest and whether the delay is inordinate, unreasonable, inexcusable and prejudicial.
- A dismissal for want of prosecution following service of a notice to show cause not proved by affidavit of service is untenable.
Court orders
#- 1.The orders made on October 14, 2021 dismissing the cause are set aside and the cause is reinstated
- 2.The cause to be fixed for hearing on priority basis
- 3.No order as to costs
- Jurisdiction invoked
- Order 17 rule 2(1) of the Civil Procedure Rules, sections 1A and 3A of the Civil Procedure Act, and rule 16 of the rules of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obwogon v Marula Estate (Employment and Labour Relations Cause 82 of 2017) [2023] KEELRC 2332 (KLR)", Case Analysis (2023). Notice of motion dated November 15, 2022 (cause filed February 27, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2332/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.