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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 3395 (KLR)
Machika v Raval (Employment and Labour Relations Cause 2139 of 2017) [2023] KEELRC 3395 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan employment court gave a negligent litigant one last 30-day chance to revive her dismissed case, on pain of final dismissal and costs.
What this practically means
#Executive summary
#The claimant filed a Notice of Motion dated July 10, 2023 seeking review and setting aside of the dismissal order of July 10, 2023 issued on a Notice to Show Cause, that the suit be set down for hearing, and costs. The application was supported by an affidavit of her advocate, Mr Wilberforce Khalwale of Khalwale & Company Advocates, who claimed he was unaware of the hearing date and had filed a replying affidavit on July 6, 2023 that was seemingly not considered before dismissal. The respondent opposed through a replying affidavit dated September 20, 2023, detailing a history of the claimant's and her advocates' non-attendance: two Notices to Show Cause, missed hearing dates on March 15 and April 20, 2023, and non-attendance at the hearing of a dismissal application served for July 10, 2023. The sole issue was whether the suit should be reinstated. The court invoked its inherent power under Section 3A of the Civil Procedure Act and Order 17 rule 2(1) of the Civil Procedure Rules, applying Fredrick Otieno Gudo, Fran Investments, Gold Lida, Mbogo v Shah and Philip Chemwolo. It found the claimant had failed to prove diligence, whether the default was hers or her advocate's. Nonetheless, to meet the ends of justice, the court conditionally reinstated the suit: the claimant was granted 30 days to set the case down for hearing, failing which the entire suit would stand dismissed with costs, and she was to pay Kshs 5,000/- throwaway costs to the respondent before the next hearing date. Judgment delivered virtually in Nairobi on December 21, 2023 by Anna Ngibuini Mwaure, Judge.
Key legal issues
#01
Whether the suit should be reinstated after dismissal for want of prosecution
Holding
Reinstated conditionally - the claimant has 30 days to set the case down for hearing, failing which the suit stands dismissed
Reasoning
The court relied on its inherent power under Section 3A of the Civil Procedure Act and Order 17 rule 2(1) of the Civil Procedure Rules, balancing the parties' interests. The claimant failed to show diligence, but an advocate's default should not be visited on a litigant where justice permits a final opportunity on terms.
p. 3
Legal principles established
#- A court's discretion to set aside an ex parte dismissal order is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a litigant who deliberately obstructs justice.
- Mistakes or defaults by counsel should not ordinarily deprive a party of a hearing on the merits absent fraud or intention to overreach.
Court orders
#- 1.The claimant is given 30 days to set her case for hearing; failing which the entire suit will stand dismissed and she will pay costs.
- 2.The claimant is to pay Kshs 5,000/- throwaway costs to the respondent before the next hearing date.
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 17 rule 2(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Machika v Raval (Employment and Labour Relations Cause 2139 of 2017) [2023] KEELRC 3395 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3395/eng@2023-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.