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ELRCPartially AllowedNot stated in the judgment

JANET KHAYUMBI MWANZA V PAMMI THATTHI [2013] KEELRC 328 (KLR)

Industrial Court of Kenya
24 April 2013
951 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, Janet Khayumbi, moved the Industrial Court by Notice of Motion dated 21st February 2013 seeking reinstatement of her claim for wrongful and unfair dismissal, which had been dismissed for non-attendance on 21st March 2012. She sought declarations of wrongful dismissal, terminal benefits, compensation equivalent to twelve months' gross salary, costs and interest. The Respondent opposed, arguing that the Claimant and her counsel failed to attend court on the hearing date, that the application was incompetent because the supporting affidavit was sworn by the advocate rather than the Claimant, that the reasons for non-attendance were lame, that there was inordinate delay in bringing the application, and that reinstatement would prejudice the Respondent. Counsel filed seven High Court authorities on dismissal for want of prosecution. The court examined the record and the online cause list and found that the case had not been listed before any court on 21st March 2012, making the dismissal inappropriate. It also found, however, that the Claimant's counsel delayed in following up the case and in applying to set aside the dismissal. Both counsel were held guilty of impropriety: the Respondent had no justification in seeking dismissal of an unlisted case and did not inform the Claimant's counsel of the dismissal. On balance, the court found it just and equitable to reinstate the case for hearing on merit, set aside the dismissal orders, and made no order for costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the dismissal of the Claimant's suit for non-attendance on 21st March 2012 should be set aside
  2. 2.Whether the reasons given for non-attendance and the delay in applying for setting aside are excusable
  3. 3.Whether the application is incompetent for being supported by an affidavit sworn by the advocate rather than the Claimant
  4. 4.Which party should bear responsibility for the non-attendance and delay

Key legal issues

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01

Whether the case was properly dismissed on 21st March 2012

Holding

The dismissal was inappropriate because the case was not listed for hearing before any court on that day

Reasoning

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.

p. 2
02

Delay and diligence by the Claimant's counsel

Holding

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

Reasoning

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.

p. 2
03

Competence of the application based on an advocate-sworn affidavit

Holding

The court did not uphold the objection; it granted the reinstatement orders notwithstanding the submission that the affidavit was sworn by the advocate

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Setting aside the orders of 21st March 2012 dismissing the Claimant's claim for non-attendance
  2. 2.Reinstating the case to be heard and determined on merit
  3. 3.No orders for costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

Costs

No orders for costs - each party to bear their own costs

Quotable passages

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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.
p. 2Improper dismissal of an unlisted suit
I find that both parties are guilty of impropriety in this case.
p. 2Shared responsibility of counsel
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.
p. 3Final orders - reinstatement
There shall be no orders for costs.
p. 3Costs

Issues in the judgment

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minor

The judgment inconsistently refers to the hearing/dismissal date as both 2011 and 2012

minor

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

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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, "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.