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ELRCDismissedNot stated in judgment· [2023] KEELRC 2455 (KLR)

Adhola v Victoria Inter-Diocesan Investment Co Ltd (Cause 415 of 2017) [2023] KEELRC 2455 (KLR)

Employment and Labour Relations Court
12 October 2023
RSRADIDO STEPHEN
823 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 case because the claimant waited 16 months without explaining the delay.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 15 May 2023 in which the Claimant sought setting aside of an order dismissing her Cause made on 24 February 2022, restoration of the suit for hearing, and costs. The dismissal followed the Claimant's failure to pay adjournment fees ordered on 14 February 2022 ahead of the hearing on 24 February 2022. The Respondent opposed the application, citing the Claimant's history of non-compliance with court orders, including orders of 8 October 2019 requiring payment of Kshs 5,000/- costs and air ticket expenses, serial adjournments secured on 25 February 2019, 8 October 2019 and 14 February 2022, non-payment of costs ordered on 24 February 2022, and inordinate delay in filing the application. The Claimant relied on Ivita v Kyumbu, Philip Chewolo & Ar v Augustine Kubedde and John Nahashon Mwangi v Kenya Finance Bank Ltd, while the Respondent relied on Njue Njagi v Ephantus Njiru and Joseph Oduor Anode v Kenya Red Cross Society. The Court restated that it should consider primarily the delay and its explanation, any prejudice caused, and the desire to do substantive justice. It found the fees were paid only after dismissal, the earlier costs of Kshs 5,000/- were only paid on 7 March 2023, and the application filed on 20 June 2023 was nearly one and a half years after dismissal with no explanation offered. The Court found the delay inordinate, found no merit in the application, and dismissed the Motion dated 15 May 2023 with costs.

Key legal issues

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01

Whether the Claimant's delay in applying to set aside the dismissal order was inordinate

Holding

The delay of nearly one and a half years was inordinate and unexplained

Reasoning

The Cause was dismissed on 24 February 2022 but the application was filed on 20 June 2023, nearly one and a half years later. The Claimant offered no explanation for the delay. She had also previously secured adjournments on 25 February 2019 and 8 October 2019 and failed to comply with conditions attached to adjournments, including payment of adjournment fees and costs, paid only after dismissal or much later.

p. 2
02

Whether the discretionary order sought should be granted

Holding

The Court found no merit in the application nor foundation to exercise its discretion in the Claimant's favour

Reasoning

Applying settled principles - delay, explanation for delay, prejudice and substantive justice - the Court found the Claimant had a history of non-compliance with court orders and conditions of adjournments, and could not demonstrate entitlement to the discretionary relief of setting aside the dismissal and restoring the suit.

p. 2

Legal principles established

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  • In considering an application to set aside a dismissal, the Court considers primarily the delay and explanations for the delay, whether the delay has caused prejudice and the desire to do substantive justice.

Court orders

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  1. 1.The Motion dated 15 May 2023 is dismissed with costs
Jurisdiction invoked
Original employment and labour relations jurisdiction; application to set aside dismissal order (discretionary power of the 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, "Adhola v Victoria Inter-Diocesan Investment Co Ltd (Cause 415 of 2017) [2023] KEELRC 2455 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2455/eng@2023-10-12

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