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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 220 (KLR)

Oduor v Marigat Vocational Training Centre aka Marigat Youth Polytechnic & another (Employment and Labour Relations Cause 237 of 2017) [2024] KEELRC 220 (KLR)

Employment and Labour Relations Court
13 February 2024
3,264 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated a worker's dismissed claim because his advocate died and he missed the hearing, but refused to move the case to Nakuru.

What this practically means

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Executive summary

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The Claimant/Applicant moved the court by Notice of Motion dated 1st August 2023 under section 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 of the Civil Procedure Rules 2010 and Article 159 of the Constitution, seeking reinstatement of his employment claim dismissed for want of prosecution on 5th July 2023, leave for new advocates to come on record, and transfer of the matter to the Nakuru Chief Magistrate's Court, ELRC. The applicant explained that neither he nor his counsel attended the mention because he was unaware of the date and his former advocate had died, evidenced by an LSK website extract. The respondents, through the County Attorney, opposed, contending that the suit had been neglected over many dates from 2019 to 2022, was correctly dismissed under Order 12 Rule 3(1), and that the death of counsel was unproven and no excuse; they also argued the transfer prayer lacked basis since the ELRC has original jurisdiction. Written submissions were filed by both parties and leave for the new firm to come on record was granted by consent on 3rd October 2023. In a ruling delivered virtually on 13th February 2024, Lady Justice Hellen Wasilwa found the respondents had not addressed the death of the claimant's counsel, and held that the applicant could not be condemned given his right to a fair hearing. She allowed the reinstatement prayer but found the transfer prayer without merit and disallowed it, with costs in the cause.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution on 5th July 2023 should be set aside

Holding

The dismissal was set aside because the claimant's former counsel had died and the claimant was unaware of the hearing date.

Reasoning

The court noted the claimant's contention that he was unaware of the mention date and that his then advocate had died. The respondents did not address the death of the claimant's counsel in their response, and the applicant annexed an LSK website extract confirming the counsel's demise. On that basis the court held the claimant could not be condemned and had a right to a fair hearing, allowing reinstatement.

p. 6
02

Whether the suit should be transferred to the Nakuru Chief Magistrate's Court

Holding

The transfer prayer was refused as without merit.

Reasoning

The applicant argued that the claimant's monthly salary of Kshs. 6,000 brought the matter within the magistrates' pecuniary jurisdiction and relied on Section 18 of the Civil Procedure Act. The respondents countered that the ELRC has original jurisdiction and no convincing reasons for transfer were given. The court agreed with the respondents and disallowed the transfer prayer without more.

p. 6

Legal principles established

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  • Where a party's failure to attend court is attributable to the death of their advocate and the party was unaware of the hearing date, the party cannot be condemned and retains the right to a fair hearing, justifying reinstatement.

Court orders

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  1. 1.The order of 5th July 2023 dismissing the suit for want of prosecution is set aside
  2. 2.Leave for the firm of Kiplenge, Andama & Makau Advocates to come on record for the claimant (by consent on 3/10/23)
  3. 3.The prayer to transfer the case to the Nakuru Chief Magistrate's Court is disallowed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 18(1)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules 2010Order 12 Rule 3(1)
  • Civil Procedure Rules 2010Order 12 Rule 7
  • Civil Procedure Rules 2010Order 51
  • Civil Procedure Rules 2010Order 1 rule 15
  • Civil Procedure Rules 2010Order 17 Rule 2
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Mbogo & Another v Shah
    EALR 1908
  • Abdirahman Mohamed Abdi v Safi Petroleum Products Ltd. & 6 others
    Civil Application No. Nai. 173 of 2010
  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
  • Robert Kimani Ndungu v Kenya Deposit Insurance Corporation (Being sued in its capacity as the receiver Manager of Chase Bank Limited (in receivership)
    [2022] eKLR
  • Ivita v Kyumba
    1984 KLR 44
  • Margaret Wanjiku Henry v Road Touch Services
    [2022] eKLR
  • Thathini Development Company Limited v Mombasa Water and Sewage Company & another
    [2022] eKLR
  • Boniface Kamau Njoroge v John Waweru Wanjohi
    [2021] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 of the Civil Procedure Rules 2010; Article 159 of the Constitution of Kenya

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, "Oduor v Marigat Vocational Training Centre aka Marigat Youth Polytechnic & another (Employment and Labour Relations Cause 237 of 2017) [2024] KEELRC 220 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/220/eng@2024-02-13

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