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ELRCPartially AllowedNotice of Motion dated 30th January, 2024 (ELRC, Nairobi)· [2024] KEELRC 1773 (KLR)
Kenya Aviation Workers Unio v Bollore Transport & Logistics Ltd & 4 others; Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union (Interested Party) (Cause E253 of 2022) [2024] KEELRC 1773 (KLR)
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#What this practically means
#Executive summary
#This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Dr. Jacob Gakeri, J on 8th July 2024, determines an application to set aside the dismissal of a Notice of Motion dated 19th December, 2023, which was dismissed on 29th January, 2024 for the Interested Party's non-attendance at a virtual hearing. The applicant, through James Tongi, attributed the non-attendance to internet connectivity challenges and confusion arising from assuming Court I was the trial court, which was not sitting that day. The Respondents and the Claimant opposed, contending that the applicant gave no plausible reason for non-attendance, failed to check the cause list, made no effort to contact opposing counsel, and did not offer throw-away costs. The court framed a single issue: whether the application dated 30th January, 2024 was merited. Relying on Order 12 Rule 7 of the Civil Procedure Rules and authorities including Richard Ncharpi Leiyagu v IEBC and John Nahashon Mwangi v Kenya Finance Bank Ltd, the court held that although the applicant provided no tangible evidence of connectivity problems and misconstrued the directions, its prompt filing of the application showed the non-attendance was unintentional, and reinstatement would cause no prejudice incapable of remedy by costs. The court set aside the dismissal orders of 29th January, 2024, reinstated the application of 19th December, 2023 for hearing, and ordered that parties bear their own costs.
Key legal issues
#01
Whether the dismissal of the Interested Party's application of 19th December 2023 for non-attendance on 29th January 2024 should be set aside and the application reinstated
Holding
Yes; the non-attendance was not intentional and reinstatement will not prejudice the Respondents in a manner not remediable by costs.
Reasoning
Although the applicant produced no tangible evidence of internet connectivity challenges and misconstrued the court's directions, it filed the setting-aside application the day after dismissal, demonstrating alacrity and that the non-attendance was unintentional. The court invoked the interest of substantial justice under Articles 50 and 159 of the Constitution, and held that the Respondents could be compensated by costs.
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Legal principles established
#- A dismissed suit or application may be set aside on application under Order 12 Rule 7 upon such terms as may be just.
- The discretion to set aside a dismissal is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.
Court orders
#- 1.The court's orders of 29th January, 2024 dismissing the Interested Party's Notice of Motion dated 19th December, 2023 are set aside.
- 2.The Notice of Motion dated 19th December, 2023 is reinstated for hearing and determination.
- 3.Parties shall bear their own costs.
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules, 2010; Sections 1, 1A and 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Unio v Bollore Transport & Logistics Ltd & 4 others; Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union (Interested Party) (Cause E253 of 2022) [2024] KEELRC 1773 (KLR)", Case Analysis (2024). Notice of Motion dated 30th January, 2024 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1773/eng@2024-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.