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ELRCDismissedNot stated in the judgment (ELRC statement of claim filed 29th June 2016)· [2023] KEELRC 2961 (KLR)

Mangale v Patrick Ndonga Kangethe t/a Edu Hotel (Cause 1269 of 2016) [2023] KEELRC 2961 (KLR)

Employment and Labour Relations Court
21 November 2023
JGJacob Gakeri
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to reinstate a suit because the claimant could not explain missing the hearing when it was first dismissed.

What this practically means

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Executive summary

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The Claimant moved the Employment and Labour Relations Court by Notice of Motion dated 6th June 2023 seeking review and setting aside of the dismissal of his suit on 30th May 2023, that the suit be set down for hearing, and costs in the cause. The application was supported by an affidavit of the Claimant's counsel, Mr. Wilberforce Khalwale, who deponed that he was hospitalized on the dismissal date and his attempt to have an advocate hold brief failed. The Claimant filed a statement of claim in June 2016 alleging unlawful termination and non-payment of terminal dues, but the litigation history was chequered: the suit was dismissed on 12th October 2022 for non-attendance, yet was erroneously listed for mention and dismissed a second time on 30th May 2023 when no suit existed. The court framed a single issue: whether reinstatement was merited. Holding that the discretion to reinstate must be exercised judiciously, and that an applicant must show the non-attendance was not deliberate, the court found counsel's illness explained only 30th May 2023, not the earlier dismissal date or missed mentions on 28th March and 3rd May 2023. The Claimant himself swore no affidavit demonstrating keenness, having last attended court in May 2022. Although the second dismissal was erroneous, reinstatement was refused because no reasonable excuse was shown for the original dismissal. The Notice of Motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the suit dismissed for non-attendance should be reinstated

Holding

The application for reinstatement failed because the applicant gave no excuse for the non-attendance on 12th October 2022 when the suit was actually dismissed, and the Claimant himself did not affidavit his keenness to prosecute

Reasoning

The court traced the chequered history: the suit was dismissed on 12th October 2022 for non-attendance, making the purported second dismissal on 30th May 2023 erroneous. The discretion to reinstate must be exercised judiciously. Counsel's indisposition on 30th May 2023 did not explain the earlier dismissal date, nor absences on 28th March and 3rd May 2023. The Claimant, last in court in May 2022, swore no affidavit showing keenness. No assurance of expeditious prosecution was demonstrated.

p. 4
02

Whether the 30th May 2023 dismissal was valid

Holding

The court found the second dismissal was erroneous because there was no subsisting suit, the suit having already been dismissed on 12th October 2022

Reasoning

The court noted that after the suit was dismissed on 12th October 2022 with no orders as to costs, it was nonetheless listed for mentions on 28th March 2023 and 3rd May 2023, and a notice to show cause was issued leading to a second dismissal on 30th May 2023. Since no suit was on record, that dismissal was a nullity, but reinstatement still depended on the merits of the application.

p. 3

Legal principles established

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  • Whether to set aside a suit dismissed for want of prosecution is a discretionary matter to be exercised judiciously, and the applicant must sufficiently explain the non-attendance
  • An applicant for reinstatement of a suit dismissed for non-attendance must demonstrate that the non-attendance was not deliberate but occasioned by a reasonable excuse
  • A case belongs to the litigant, not to counsel

Court orders

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  1. 1.The Notice of Motion dated 6th June 2023 seeking review and setting aside of the dismissal of 30th May 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court Act2011
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • CMC Holdings Ltd v Nzioki
    (2004) KLR 173
  • Simon Kiura Ngurari v Wells Fargo Ltd
    (2014) eKLR
  • Thathini Development Co. Ltd v Mombasa Water & Sewerage Company and another
    (2022) eKLR
  • Savings and Loans Ltd v Susan Wanjiru Muritu
    HCCC 397 of 2002
  • Ruga Distributors Ltd v Nairobi Bottlers Ltd
    (2015) eKLR
  • HKM v BKC
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011

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, "Mangale v Patrick Ndonga Kangethe t/a Edu Hotel (Cause 1269 of 2016) [2023] KEELRC 2961 (KLR)", Case Analysis (2023). Not stated in the judgment (ELRC statement of claim filed 29th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2961/eng@2023-11-21

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