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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1524 (KLR)

Ali v Murugu & another (Cause E147 of 2022) [2024] KEELRC 1524 (KLR)

Employment and Labour Relations Court
14 June 2024
JRJames Rika
726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court reinstated a Kshs. 10 million claim dismissed for non-attendance, ruling a litigant shouldn't suffer for her lawyer's negligence—but made the lawyer personally pay costs.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on the Claimant's application dated 5th February 2024 seeking reinstatement of her Claim, which was dismissed for non-attendance on 19th December 2023. The hearing date had been taken by the Claimant in the absence of the Respondents; when the Claim was called out, neither the Claimant nor her Advocate attended, and the Respondents' Advocate sought dismissal, which the Court granted without costs on orders. The Claimant's Advocate later explained she was involved in another hearing and was indisposed, though the nature of the indisposition was undisclosed, and asserted the Claimant's diligence in prosecuting the Claim. The 1st Respondent opposed, contending no good reason was given for the absence. Deciding the application on affidavit evidence and submissions, the Court found the Claimant keen and diligent in prosecuting her Claim, valued at over Kshs. 10 million, arising from alleged employment dating back to 1992 and dismissal in 2021. Although unpersuaded by the reasons for non-attendance, the Court held the Claimant should not be punished for her Advocate's mistake, noting a responsible Advocate arranges a holding brief when engaged elsewhere or indisposed. The Court also faulted the Advocates for failing to notify the Respondents of the September 2023 hearing date. The Claim was reinstated, but the Advocates were ordered personally to pay the Respondents costs of Kshs. 8,500, their explanation being held unfair to all parties and the Court. Judgment delivered electronically on 14th June 2024 by James Rika, Judge.

Key legal issues

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01

Whether to reinstate a claim dismissed for non-attendance

Holding

The Claim was reinstated because the Claimant showed diligence in prosecuting the Claim and should not be locked out through her Advocates' negligence

Reasoning

The record showed the Claimant took active steps to prosecute her claim, including scheduling hearings. Although the court was not persuaded by the reasons given for non-attendance, the claim valued at over Kshs. 10 million arising from long service dating back to 1992 deserved to be heard on merit. The Advocates' failure to arrange a holding brief or notify the Respondents was their fault, not the Claimant's. Reinstatement was granted with compensatory costs imposed personally on the Advocates.

p. 2
02

Responsibility of Advocates for non-attendance

Holding

Advocates must hold their brief or communicate delays; their unsatisfactory explanation attracted personal liability for costs

Reasoning

The court observed that a responsible advocate arranges for a holding brief when engaged in another court or indisposed. It questioned why the Claimant was not advised to attend or communicate the delay, and noted the Advocate had neglected to notify the Respondents of the earlier hearing date. The explanation of indisposition or a conflicting hearing was 'not fair' to the Claimant, Respondents or the Court, justifying costs of Kshs. 8,500 against the Advocates personally.

p. 2

Legal principles established

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  • A litigant should not be punished for the mistake or negligence of her Advocate
  • A responsible Advocate should arrange for holding of his/her brief when engaged elsewhere or indisposed

Court orders

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  1. 1.The Claim is reinstated
  2. 2.Costs of Kshs. 8,500 to the Respondents, to be paid by the Claimant's Advocates
Jurisdiction invoked
Inherent power of the Employment and Labour Relations Court to reinstate a suit dismissed for non-attendance (not expressly stated in the judgment)

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, "Ali v Murugu & another (Cause E147 of 2022) [2024] KEELRC 1524 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1524/eng@2024-06-14

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