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ELRCDismissedMotion dated 7 June 2024 (Cause dismissed on 6 June 2024 for want of prosecution)· [2024] KEELRC 2570 (KLR)

Kibinge v Co-operative Bank of Kenya Limited (Cause 843 of 2019) [2024] KEELRC 2570 (KLR)

Employment and Labour Relations Court
24 October 2024
525 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to reinstate a dismissed employment case because it had already heard and rejected the same explanations, leaving an appeal as the only option.

What this practically means

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Executive summary

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The applicant's employment Cause against Co-operative Bank of Kenya Ltd was dismissed on 6 June 2024 for want of prosecution after a Notice to Show Cause, following a chequered history: the Cause began before a Senior Resident Magistrate, was transferred to the Employment and Labour Relations Court after the magistrate declined jurisdiction, hearing dates were not attended, and the Claimant's advocates came off record in May 2023 for lack of instructions with no steps taken thereafter. The applicant moved the Court seeking to set aside the dismissal and reinstate the Cause, contending her erstwhile advocates had lied to her that a Notice of Appointment had been filed and that an innocent party should not suffer for an advocate's mistakes. The Respondent filed Grounds of Opposition and both parties filed submissions. The Court, per Radido Stephen, J, compared the written grounds with the proceedings of 6 June 2024 and found they were the same explanations already given from the bar and rejected before dismissal. It held it was functus officio and could not relook at the rejected explanations; the applicant's remedy was to appeal against the dismissal. The Motion dated 7 June 2024 was dismissed with costs, delivered virtually on 24 October 2024.

Key legal issues

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Whether the Court could reopen its dismissal of the Cause for want of prosecution

Holding

The Court could not; it was functus officio having already rejected the same explanations before dismissing the Cause, and the proper remedy was an appeal.

Reasoning

The applicant's grounds in the Motion were that her erstwhile advocates lied that a Notice of Appointment had been filed and that she was an innocent party. The Court found these were the very same reasons earlier given from the bar at the Notice to Show Cause hearing and rejected. Having exercised its discretion and dismissed the Cause, the Court could not relook at the rejected explanations; the applicant's remedy lay in an appeal.

p. 2

Legal principles established

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  • Where a court has dismissed a cause after rejecting a party's explanations at a Notice to Show Cause, the court becomes functus officio and cannot revisit the same explanations; the remedy is an appeal.

Court orders

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  1. 1.The Motion dated 7 June 2024 dismissed with costs
Jurisdiction invoked
Inherent and review-style jurisdiction of the Employment and Labour Relations Court over its own dismissed Cause (no specific provision cited)

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, "Kibinge v Co-operative Bank of Kenya Limited (Cause 843 of 2019) [2024] KEELRC 2570 (KLR)", Case Analysis (2024). Motion dated 7 June 2024 (Cause dismissed on 6 June 2024 for want of prosecution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2570/eng@2024-10-24

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