Waruru v Kenya Airways Limited (Cause 208 of 2012) [2014] KEIC 136 (KLR)
The bottom line
#Kenya's Employment Court refused to revive a dismissal claim filed 31 years late, ruling that even a good excuse for missing court cannot save a hopeless, time-barred case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should set aside its orders of 4th November 2013 dismissing the Claimant's application for reinstatement of the suit, and reinstate the Claimant's application dated 16th September 2013 for hearing on merit
Key legal issues
#Whether the discretion to set aside dismissal orders should be exercised in favour of the Claimant
The application fails because the Claimant has no reasonable cause of action and the claim is hopelessly time barred; reinstatement would be an academic exercise
Applying CMC Holdings v Nzioki, the court must consider not only the reason counsel failed to attend but also whether the claimant has a reasonable cause of action or whether the claim raises triable issues. Here the substratum of the claim was summary dismissal on 12th November 1981, and the suit was filed in 2012, over three decades later. The oxygen principle applies irrespective of the party invoking it, so reinstating the claim would clog the judicial system.
Legal principles established
#- In setting aside ex parte or dismissal orders, the court exercises a discretion which must be exercised upon reasons and judiciously, considering both the reason for non-attendance and whether the claim raises triable issues or a reasonable cause of action
- The oxygen principle/overriding objective applies irrespective of the party before the Court, and no employment claim can lie 31 years after the fact
Court orders
#- 1.The Notice of Motion application dated 4th December 2013 seeking to set aside the orders of 4th November 2013 and reinstate the Claimant's application dated 16th September 2013 is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction under Sections 3A and 3B of the Civil Procedure Act (oxygen principle / overriding objective) to set aside its own dismissal orders
Relief refused
#Setting aside the orders of 4th November 2013 and reinstatement of the Claimant's application dated 16th September 2013 for hearing on merit
The Claimant has no reasonable cause of action; the claim was filed 31 years after the cause of action accrued and is hopelessly time barred, so reinstatement would merely clog the judicial system
Costs
The Application is dismissed with costs to the Respondent (costs to the Respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In an application before a court to set aside an ex parte judgment, the court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and judiciously.
The oxygen principle should be applied irrespective of the party before the Court.
The Application is from the foregoing thus not fit for grant and it is dismissed with costs to the Respondent.
Orders accordingly.
Issues in the judgment
#The judgment does not name the Respondent party or give the case number of the Claim; it refers only to 'the Respondent' and 'the Claim'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waruru v Kenya Airways Limited (Cause 208 of 2012) [2014] KEIC 136 (KLR)", Case Analysis (2014). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/136/eng@2014-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.