Christopher Otieno v Load Trailers (E.A.) Limited [2020] KEELRC 960 (KLR)
The bottom line
#Kenya's Employment Court refused to revive a wrongful dismissal suit because the claimant and his lawyer waited too long and showed no real interest in pursuing the 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 failure to attend Court by the Advocate or the Claimant/Applicant constituted an inadvertent excusable mistake
- 2.Whether the Orders given on 25th July 2018 dismissing the suit should be set aside
- 3.Whether the Respondent will suffer any prejudice if the matter is reinstated
- 4.Whether there has been inordinate and excusable delay
Key legal issues
#Whether counsel's non-attendance and subsequent delay were excusable
The delay was inordinate and inexcusable; counsel was reckless in failing to send a holding brief or peruse the file
The court found the explanation of an emergency unsupported by particulars and the alleged statement by a court clerk unverified. Counsel failed to instruct another advocate or peruse the file. The application was filed over a year after dismissal, and a further month after discovery, both periods being inordinate and unexplained.
Whether the claim had triable issues warranting reinstatement
No triable issues; the probationary contract abated naturally on its terms
The claim concerned wrongful termination of a 3-month probationary contract as SAP Administrator. Neither party mentioned renewal or extension, so the contract abated naturally. The Claimant did not personally depone to any interest in prosecuting the case, and the conduct showed disinterest, so reinstatement would only prejudice the Respondent.
Whether the Claimant personally demonstrated interest in prosecuting the claim
He did not; no affidavit from the Claimant himself was sworn
The application was supported only by the Advocate's affidavit, despite the Claimant pleading a good case with triable issues. The Claimant did not explain his whereabouts on the hearing date or express any personal interest in prosecuting the case, indicating lack of faith in the claim.
Legal principles established
#- Principles governing reinstatement of suits dismissed for want of prosecution: inordinate delay, whether delay is intentional/contumelious, abuse of process, risk to fair trial or prejudice, prejudice to plaintiff from dismissal, explanation offered, and the dictates of the interest of justice
Court orders
#- 1.The Claimant's notice of motion application dated 15th August 2019 is dismissed
- 2.Costs of the application to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 12 Rule 7 of the Civil Procedure Rules 2010
Relief refused
#Setting aside the order of dismissal of 25th July 2018 and reinstatement of the suit
Inordinate and inexcusable delay; no disclosed particulars of counsel's alleged emergency; no triable issues; Claimant showed disinterest in prosecuting the claim
Costs
Application dismissed with 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 view of the foregoing, I find no merit in the application and hereby dismiss the Claimant’s application with costs to the Respondent.
Both instances of which I find, amount to inordinate and inexcusable delay.
I do not see any triable issues for the court’s determination that would necessitate the reinstatement of this suit.
It is reckless for counsel to fail to instruct another counsel to hold his brief and inform the court that he was indisposed and have the matter placed aside or at the very least to peruse the court file to confirm the orders of the court.
Issues in the judgment
#The judgment records that the application was filed 'a month after the last court attendance of 11th July, 2018' whereas the attendance/discovery date elsewhere is stated as 11th July, 2019 — the year is inconsistent within the judgment
The suit is referred to as filed by the Claimant on 11th November 2015 by way of a Memorandum of Claim dated 9th November 2015 (filing date precedes nothing but is inconsistent with a claim 'dated' later not being possible; the narrative also describes the 11th July 2019 hearing as one 'the matter came up for hearing')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Otieno v Load Trailers (E.A.) Limited [2020] KEELRC 960 (KLR)", Case Analysis (2020). Employment Cause (Memorandum of Claim dated 9th November 2015; application for reinstatement) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/960/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.