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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 248 (KLR)

Nduru v Avenue Service Station Ltd (Cause 839 of 2018) [2024] KEELRC 248 (KLR)

Employment and Labour Relations Court
15 February 2024
BMB. O. M. Manani
1,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court reinstated a dismissed application because a lawyer's injury and a virtual courtroom mix-up counted as sufficient reason for missing the hearing.

What this practically means

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Executive summary

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The Respondent's application dated 24th October 2023, seeking leave to file a Reply to the Amended Claim, a witness statement for a substituted witness and the recalling of the Claimant for further cross-examination, was dismissed for want of prosecution on 4th December 2023 when the Respondent's lawyers failed to appear. On 18th December 2023 the Respondent applied to set aside those orders. Its counsel explained that he had fractured his knee in an accident and that the colleague holding his brief, Lulu Kamau, inadvertently logged into the wrong virtual courtroom. The Claimant opposed, questioning the accident, noting that the medical report was dated 27th December 2023. The court found the x-ray forms showed the injury occurred around 27th November 2023 and accepted the report's later date as an error. Although the reinstatement application was filed over ten days after dismissal with no explanation for the delay, the court invoked Article 159 of the Constitution so as not to lock the Respondent out of the seat of justice, holding the non-attendance was for sufficient reason. The court reinstated the application dated 24th October 2023, awarded the Claimant costs of the reinstatement application, and directed that the reinstated application be heard on priority basis by written submissions, with four-day filing timelines and a ruling date of 6th March 2024. Judgment was delivered online on 15th February 2024 with the parties' consent and waiver of Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Sufficient reason for non-attendance and setting aside dismissal orders

Holding

Failure to attend court was for sufficient reason where counsel suffered an injury around the court date and the holding-brief colleague inadvertently joined the wrong virtual courtroom

Reasoning

The court accepted that the injury occurred around 27th November 2023, corroborated by x-ray forms dated 27th November 2023 despite the medical report being dated 27th December 2023. The colleague's affidavit explained the inadvertent entry into the wrong virtual courtroom. Although the reinstatement application was filed over ten days after dismissal without explanation, the court invoked Article 159 so as not to lock the Respondent out of the seat of justice.

p. 3

Legal principles established

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  • The discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Court orders

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  1. 1.The Respondent's application dated 24th October 2023 reinstated for hearing
  2. 2.Costs of the application dated 18th December 2023 granted to the Claimant
  3. 3.The application dated 24th October 2023 to be heard on priority basis, by way of written submissions
  4. 4.Respondent to file and serve submissions within four days (inclusive of weekends)
  5. 5.Claimant to file and serve submissions within four days upon service (inclusive of weekends)
  6. 6.Ruling on the application dated 24th October 2023 to be delivered on 6th March 2024

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Mureithi Charles & another v Jacob Atina Nyagesuka
    [2022] eKLR
Jurisdiction invoked
Article 159 of the Constitution (invoked by the court); ELRC Procedure Rules

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, "Nduru v Avenue Service Station Ltd (Cause 839 of 2018) [2024] KEELRC 248 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/248/eng@2024-02-15

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