Kazungu Tsuwi Kalama v Chairman, Secretary, Treasurer and/or Trustees of Almadrasa Tusalfiyal Burhaniyah (BBES) [2014] KEELRC 25 (KLR)
The bottom line
#Kenya's Employment Court reinstated a worker's claim dismissed for lateness, confirming that parties deserve to be heard before their cases are thrown out.
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 order dismissing the Claim for non-attendance on 17th July 2014 should be set aside
- 2.Whether the Claimant's Advocate showed good reason for his late arrival in Court
- 3.Whether the time-bar objection under Section 90 of the Employment Act was relevant to the reinstatement application
Key legal issues
#Whether the dismissal of the Claim for non-attendance should be set aside
The dismissal order was set aside because the Advocate's delay was explained by traffic congestion, the matter was only a mention, and the Claimant is entitled to be heard.
The Court found the mention was for procedural orders, not hearing, so an indefinite postponement would have sufficed rather than dismissal. The Advocate gave a credible explanation - heavy traffic between Malindi and Mombasa while using public transport - and the Claimant, though present, was not conversant with court process and could not alert the Court. The Court held the time-bar objection was not the issue under consideration; the only issue was the dismissal for non-attendance.
Relevance of the time-bar objection under Section 90 of the Employment Act
The Court noted the Claim could be time barred but held this was not the issue before it on the reinstatement application.
The Respondent argued in its Grounds of Opposition that reinstating the Claim would be prejudicial since the main Claim was time barred under Section 90 of the Employment Act. The Court acknowledged the point but confined itself to the dismissal-for-non-attendance question, leaving the limitation issue to be determined in the main Claim.
Legal principles established
#- A dismissal order for non-attendance at a mention fixed for procedural directions is too harsh where an indefinite postponement would have sufficed
- A party is entitled to be heard
Court orders
#- 1.The order for dismissal of the Claim dated 17th July 2014 is set aside
- 2.Parties shall move the Court on the next course of action
- 3.The matter is Stood Over Generally in the meantime
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers to set aside dismissal orders for non-attendance (Employment and Labour Relations Court)
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.
The order dismissing the Claim, would appear too harsh, while an order for indefinite postponement would have sufficed.
The Claimant is entitled to be heard.
The order for dismissal of the Claim dated 17th July 2014 is set aside.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu Tsuwi Kalama v Chairman, Secretary, Treasurer and/or Trustees of Almadrasa Tusalfiyal Burhaniyah (BBES) [2014] KEELRC 25 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/25/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.