Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedELD ELRC NO. 12 OF 2022· [2024] KEELRC 804 (KLR)

Naiberi River Campsite and Resort v Jomo (Employment and Labour Relations Appeal E012 of 2022) [2024] KEELRC 804 (KLR)

Employment and Labour Relations Court
12 April 2024
MOMaureen Onyango
821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court reinstated an appeal dismissed at a mention, confirming suits cannot be dismissed without a hearing date or notice to show cause.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Eldoret, delivered by Maureen Onyango J on 12th April 2024, determined an application dated 12th September 2023 by the Appellant seeking to set aside orders made on 31st July 2023 dismissing the appeal for non-attendance at a mention. The Appellant explained that its advocate never received the email notifying them of the mention date, and that the lower court file had been missing, preventing preparation of the record of appeal. The Respondent opposed, arguing the Appellant had failed for 18 months to file a record of appeal despite having custody of the trial pleadings, and that the application was only prompted by the Respondent's intention to begin execution proceedings. Relying on Pithon Waweru Maina v Thuku Mugiria, Patel v E.A Cargo Handling Services Ltd and Shah v Mbogo, the court held that its discretion to set aside orders is wide and aimed at avoiding injustice from accident, inadvertence or excusable mistake. It found the Appellant's explanation justified, noted active follow-up on the missing trial file, and found no evidence of deliberate delay. Critically, the court held that dismissing the appeal on a mention date was an error, since no suit can be dismissed for non-attendance unless on a hearing date or after a notice to show cause. The application was allowed; the dismissal orders were set aside, the appeal reinstated, and costs of the application were made costs in the cause.

Key legal issues

#
01

Setting aside of an order dismissing an appeal for non-attendance

Holding

The application was allowed; the dismissal orders were set aside and the appeal reinstated.

Reasoning

The court exercised its wide discretion to set aside orders, guided by Patel v E.A Cargo Handling Services Ltd and Shah v Mbogo. It found the Appellant's explanation for non-attendance justified: counsel never received the email notifying them of the mention date. The trial court's file had been missing, preventing preparation of the record of appeal, and there was no evidence of deliberate delay. More fundamentally, dismissal on a mention date was an error of the court.

p. 2

Legal principles established

#
  • No suit can be dismissed for non-attendance or want of prosecution unless on a hearing date or after a notice to show cause.
  • The discretion to set aside orders is wide and intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.

Court orders

#
  1. 1.The Appellant's Application dated 12th September 2023 is granted in terms of prayer (e) and (f)
  2. 2.The orders of the court dismissing the appeal made on 31st July 2023 are set aside and the appeal reinstated
  3. 3.The costs of the application shall be in the cause

Authorities

#

Cases cited (3)

  • Pithon Waweru Maina v Thuku Mugiria
    1983 eKLR
  • Patel v E.A Cargo Handling Services Ltd
    [1974] E.A. 76
  • Shah v Mbogo
    [1967] E.A 116
Jurisdiction invoked
Inherent discretion to set aside orders/judgments under the court's rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Naiberi River Campsite and Resort v Jomo (Employment and Labour Relations Appeal E012 of 2022) [2024] KEELRC 804 (KLR)", Case Analysis (2024). ELD ELRC NO. 12 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/804/eng@2024-04-12

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