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ELRCAllowedNot stated in the judgment (Memorandum of Claim filed 19th January 2018)· [2023] KEELRC 3146 (KLR)

Kaveta v Manpower Networks Limited (Employment and Labour Relations Cause 47 of 2018) [2023] KEELRC 3146 (KLR)

Employment and Labour Relations Court
21 November 2023
OKOcharo Kebira
1,720 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated a dismissed employment case, ruling that a litigant's earlier diligence in seeking a hearing date outweighed his missed court date.

What this practically means

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Executive summary

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The Claimant, whose employment suit filed on 19th January 2018 was dismissed for want of prosecution on 6th June 2022 when neither he nor his counsel attended court, applied by Notice of Motion dated 26th September 2022 to set aside the dismissal and reinstate the suit. He contended that the Deputy Registrar fixed the matter for 6th July 2022 without notifying his counsel, so his non-attendance was a registry mistake not attributable to him, and that he had diligently sought a hearing date. The Respondent opposed, asserting the hearing date of 6th June 2022 was agreed by both counsel before the Deputy Registrar on 16th May 2022, that the application was an abuse of process, filed late without prompt service, and that the Claimant had not approached the court with clean hands. The court distilled a single issue: whether the suit could be reinstated for hearing on merit. Reaffirming Shah v Mbogo, it held that reinstatement is discretionary and granted only where justice requires. It rejected the Applicant's account of the hearing date, finding the date was fixed in the presence of both counsel and that his lack of candidness was glaring. Nonetheless, the Applicant's prior efforts to have the matter set down for hearing saved the application, and the four-month delay in moving the court was not inordinate. The application was allowed with no orders as to costs and the matter was directed to be fixed for hearing on a priority basis.

Key legal issues

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01

Whether the suit dismissed for want of prosecution on 6th June 2022 should be reinstated

Holding

The application was allowed: although the Applicant was not candid about the hearing date, his prior efforts to set the matter down and the absence of inordinate delay justified reinstatement in the interest of hearing the suit on merit

Reasoning

The court found the hearing date of 6th June 2022 was fixed in the presence of both counsel, discrediting the Applicant's claim that the date was 6th July 2022 without notice. However, the Applicant had shown prior diligence in seeking a hearing date, and the four-month delay in filing the reinstatement application was not inordinate. The court therefore exercised its discretion to reinstate the suit.

p. 4
02

Whether the four-month delay in filing the application amounted to inordinate delay

Holding

A period of four months between dismissal (6th June 2022) and the application (26th September 2022) did not amount to inordinate delay

Reasoning

The court weighed the delay against the Applicant's demonstrated diligence and the overriding objective of deciding cases on merit, concluding the delay did not disentitle the Claimant to the orders sought.

p. 4

Legal principles established

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  • An order setting aside dismissal and reinstating a suit is discretionary and granted only where the justice of the case requires it
  • Courts should as much as possible save matters for hearing inter partes on merit

Court orders

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  1. 1.The Claimant/Applicant's Application dated 26th September 2022 is allowed with no orders as to costs
  2. 2.The orders of 6th June 2022 dismissing the suit for want of prosecution are varied/set aside and the suit filed on 19th January 2018 is reinstated
  3. 3.The matter to be fixed for hearing on a priority basis

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Employment and Labour Relations Court Actsections 3, 20(1)
  • Employment and Labour Relations Court (Procedures) RulesRule 17
  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 51 Rule 1

Cases cited (1)

  • Shah v Mbogo & another
    [1996] EA 116
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya 2010; sections 3, 20(1) Employment and Labour Relations Court Act; Rule 17 ELRC (Procedures) Rules; sections 1A, 1B, 3A Civil Procedure Act; Order 51 Rule 1 Civil Procedure Rules 2010

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, "Kaveta v Manpower Networks Limited (Employment and Labour Relations Cause 47 of 2018) [2023] KEELRC 3146 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim filed 19th January 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3146/eng@2023-11-21

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