JANET KHAYUMBI MWANZA V PAMMI THATTHI [2013] KEELRC 328 (KLR)
The bottom line
#Kenya's Industrial Court reinstated an employment claim wrongly dismissed when it was never listed for hearing, but ordered each side to bear its own costs.
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 dismissal of the Claimant's suit for non-attendance on 21st March 2012 should be set aside
- 2.Whether the reasons given for non-attendance and the delay in applying for setting aside are excusable
- 3.Whether the application is incompetent for being supported by an affidavit sworn by the advocate rather than the Claimant
- 4.Which party should bear responsibility for the non-attendance and delay
Key legal issues
#Whether the case was properly dismissed on 21st March 2012
The dismissal was inappropriate because the case was not listed for hearing before any court on that day
The court perused the record and the online cause list and found that the case was not listed before any court on 21st March 2012. There was no explanation why the Claimant assumed the case would be heard before Justice Kosgei at 10.00 a.m., or how it was called before Justice Mukunya at 2.30 p.m. when it was not listed in that court or any other court. Dismissal of an unlisted case was therefore improper.
Delay and diligence by the Claimant's counsel
The Claimant's counsel was dilatory both in following up the case and in applying to set aside the dismissal, but this did not defeat reinstatement
The court found that after confirming the case was not listed, counsel took no action to fix it until 31st July 2012, and after learning of the dismissal on 13th September 2012, waited almost four months until 25th February 2013 to apply for setting aside. Both parties were guilty of impropriety: the Respondent sought dismissal of an unlisted case and did not inform the Claimant's counsel of the dismissal, while the Claimant's counsel lacked diligence.
Competence of the application based on an advocate-sworn affidavit
The court did not uphold the objection; it granted the reinstatement orders notwithstanding the submission that the affidavit was sworn by the advocate
The Respondent submitted that the application was incompetent because the affidavit supporting it was sworn by the Claimant's advocate rather than the Claimant herself, and that the reasons for non-attendance were lame and inexcusable. The court did not rule expressly on this objection but, having found that the case was never cause listed and that both sides bore blame, exercised its discretion to reinstate the suit.
Legal principles established
#- A court should not dismiss a suit for non-attendance where the suit was not listed for hearing before that court
- Where both counsel are guilty of impropriety, justice favours reinstatement so the claim is determined on merit
Court orders
#- 1.Setting aside the orders of 21st March 2012 dismissing the Claimant's claim for non-attendance
- 2.Reinstating the case to be heard and determined on merit
- 3.No orders for costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers of the Court to set aside its orders and grant just and equitable relief in an employment claim
Relief refused
#Costs of the application
Both parties were found guilty of impropriety - the Respondent applied for dismissal of a case that was not cause listed, and the Claimant's Counsel delayed in following up the case
Costs
No orders for costs - each party to bear their own costs
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.
Under the circumstances I find that it was not appropriate for the Court to dismiss the case as it was not listed for hearing before the Court.
I find that both parties are guilty of impropriety in this case.
I therefore set aside the orders of 21st March 2012 dismissing the Claimant’s claim for non-attendance and re-instate the case to be heard and determined on merit.
There shall be no orders for costs.
Issues in the judgment
#The judgment inconsistently refers to the hearing/dismissal date as both 2011 and 2012
The disposition states a signature line with the date left blank and the day/month appearing separately, so the exact signing date is not confirmed in the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JANET KHAYUMBI MWANZA V PAMMI THATTHI [2013] KEELRC 328 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/328/eng@2013-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.