Patrick Owino Odawa v Allpark Industries Limited [2017] KEELRC 793

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CAUSE NO. 541 OF 2012 PATRICK OWINO ODAWA............................................CLAIMANT VERSUS ALLPARK INDUSTRIES LIMITED............................RESPONDENT Mr. Agina for claimant/applicant M/S Adioloyr for respondent RULING 1. This is an application to set aside the decision of Marete J. given on 12 th December 2012 dismissing this suit for non-attendance. The suit was filed on 2nd April 2012. The suit was responded to on 18th June 2012. 2. On 29th May 2012, the suit was set for hearing by Hon. Madzayo J. on 12 th November 2012 at 10 a.m. in the presence of Mr. Aketch for claimant and Mr. Malonza for respondent. 3. On the 12th November 2012, the matter was listed for hearing before Justice D. K. Marete. Both parties did not appear and the suit was dismissed for want of prosecution. 4. The application to set aside the decision dismissing the claim and reinstate the same was filed on 29 th January 2013, two months after the suit was dismissed. However, the same has taken many years to be heard and determined. 5. Counsel for the claimant, Mr. Agina states that on the 12th December 2012, when the matter was dismissed the claimant was at the High Court under the misunderstanding that all Industrial Court Judges were sitting there. It later dawned on counsel that the matter was listed before D. K. Marete J. at NSSF Building. 6. The court takes judicial notice that this was the transition period for the newly established Employment and Labour Relations Court and the confusion raised by counsel for the claimant, Mr. Agina is understandable. 7. The court should endeavor to accord parties a fair hearing before dismissing their suits and only in exceptional circumstances should the hearing be denied.

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