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ELRCAllowedNotice of Motion dated July 25, 2023 (ELRC suit dismissed July 24, 2023)· [2024] KEELRC 591 (KLR)

Oyoo v Registered Trustees of the Sisters of Mercy (Kenya) t/a The Mater Misericodiae Hospital (Employment and Labour Relations Appeal 717 of 2019) [2024] KEELRC 591 (KLR)

Employment and Labour Relations Court
8 March 2024
OKOCHARO KEBIRA
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court reinstated an employee's dismissed suit because his lawyer honestly mixed up the hearing date and moved quickly to fix the error.

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 July 25, 2023 seeking to set aside an order of July 24, 2023 dismissing its suit for want of prosecution following the non-attendance of the Claimant and his Advocate at the hearing. The application, supported by an affidavit of the Claimant's Advocate, Norbert Jude Onyango, explained that the non-attendance arose from mis-diarization of the hearing date - the Advocate honestly believed the matter was fixed for July 27, 2023. The Respondent opposed, sworn through Evelyn N. Maina, contending that no sufficient cause was shown, that both the Claimant and his Advocate were in court on March 27, 2023 when the July 24, 2023 date was fixed, and that both were negligent, so the principle that counsel's mistake should not be visited on the client did not apply. The court framed a single issue: whether the orders sought should be granted. Relying on Ugandan, Tanzanian, Indian and Kenyan authorities on what constitutes sufficient cause, Ocharo Kebira J found the explanation plausible, convincing and truthful, noting the timeous filing of the application the day after discovery of the error. Invoking section 12(3)(viii) of the ELRC Act, rule 28(1)(g) of the ELRC (Procedure) Rules 2016 and articles 50 and 159(2)(d) of the Constitution, the court set aside the dismissal, reinstated the suit for hearing on merit on a priority basis, and ordered the Claimant to pay the Respondent thrown away costs of Kshs. 10,000/- before the next hearing date.

Key legal issues

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01

Whether sufficient cause was demonstrated to warrant setting aside the dismissal for want of prosecution

Holding

The mis-diarization of the hearing date by the Claimant's Advocate constituted sufficient cause, and the prompt filing of the application the following day evidenced a keen litigant; the dismissal order was set aside and the suit reinstated.

Reasoning

The court considered foreign and regional authorities defining 'sufficient cause' as requiring no negligence, inaction or want of bona fides. The Claimant explained the non-attendance as arising from a genuine mis-diarization by his Advocate, discovered on the hearing day itself, and applied to set aside the dismissal the very next day. The court found the explanation plausible, convincing and truthful, invoked its discretion under the ELRC Act, ELRC Procedure Rules and the Constitution, and reinstated the suit with thrown away costs to the respondent.

p. 3

Legal principles established

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  • A party seeking to set aside a dismissal for non-attendance must demonstrate sufficient cause, and the court's discretion must be exercised judiciously.

Court orders

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  1. 1.Set aside the order dismissing the suit issued on July 24, 2023
  2. 2.Reinstate the Claimant's suit for hearing on merit
  3. 3.The suit shall be heard on a priority basis
  4. 4.The claimant shall pay the respondent thrown away costs of Kshs. 10,000/- before the hearing date to be given

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 50(1), 50, 159(2)(d), 48
  • Civil Procedure ActSections 1, 1A, 3, 3A, 1B
  • Civil Procedure Rules 2010Order 10 rule 11; Order 21 rule 1
  • Employment and Labour Relations Court Act No. 20 of 2011Section 12(3)(viii)
  • Employment and Labour Relations Court Rules 2016Rule 22(2); Rule 28(1)(g)

Cases cited (5)

  • Philip Ongom, Capt v Catherine Nyero Owota
    Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003)
  • The Registered Trustees of the Archdiocese of Dar es Salaam v The Chairman Bunju Village Government & others
    Civil Appeal No. 147 of 2006
  • BML v WM
    [2020] eKLR
  • Parimal v Veena Bharti
    Civil Appeal 1467 of 2011 (2011)
  • The Honourable Attorney General v the Law Society of Kenya & another
    Civil Appeal (Application) No. 133 of 2011
Jurisdiction invoked
Articles 50(1), 50 and 159(2)(d) of the Constitution of Kenya 2010; section 12(3)(viii) Employment and Labour Relations Court Act No. 20 of 2011; rule 28(1)(g) Employment and Labour Relations Court (Procedure) Rules 2016; sections 1, 1A, 3 & 3A Civil Procedure Act; Order 10 rule 11 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, "Oyoo v Registered Trustees of the Sisters of Mercy (Kenya) t/a The Mater Misericodiae Hospital (Employment and Labour Relations Appeal 717 of 2019) [2024] KEELRC 591 (KLR)", Case Analysis (2024). Notice of Motion dated July 25, 2023 (ELRC suit dismissed July 24, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/591/eng@2024-03-08

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