Ombati v New Kenya Cooperative Creameries Ltd (Cause 325 of 2019) [2023] KEELRC 2417 (KLR)
The bottom line
#A Kenyan employment claim dismissed for repeated non-attendance stayed dismissed because the claimant could not prove the court notices were never served.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the Claim for want of prosecution should be set aside and the suit reinstated
The application fails; service of the Notice to Show Cause by email to the Advocate's disclosed address was effective, and the Claimant's prior non-attendances demonstrated lack of diligence, so no valid reason for reinstatement exists
The Court applied Shah v Mbogo on discretion and Ivita v Kyumbu on reinstatement. The Notice to Show Cause was emailed to addresses the Claimant's Advocate himself disclosed in pleadings and on his letterhead, making his claim of non-service implausible. Both parties were absent when the Notice came up, and the Claimant had previously failed to attend on 6th August 2020 and 25th May 2022. The explanation for the dismissal was therefore inexcusable and the discretion was not exercised in the Claimant's favour.
Legal principles established
#- The discretion to set aside dismissal of a suit is to be exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
- A suit will only be dismissed for want of prosecution where the delay is prolonged and inexcusable and justice cannot be done despite the delay; the defendant must show prejudice
- A litigant whose case is dismissed for want of prosecution cannot attribute his non-attendance to the opponent's failure to notify him; the case belongs to the litigant who must prosecute it
Court orders
#- 1.The Application dated 28th November, 2022 seeking setting aside of the dismissal of the Claim is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Original employment jurisdiction of the Employment and Labour Relations Court (provision not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombati v New Kenya Cooperative Creameries Ltd (Cause 325 of 2019) [2023] KEELRC 2417 (KLR)", Case Analysis (2023). Cause No 325 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2417/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.