Odongo v National Transport and Safety Authority (Cause 160 of 2017) [2024] KEELRC 879 (KLR)
The bottom line
#A Kenyan employment court refused to revive a dismissed case because the claimant waited two months and gave an explanation the court could disprove.
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 Cause, dismissed on 14 December 2023 for non-attendance, should be reinstated
- 2.Whether the Motion filed on 29 February 2024 was brought after inordinate and unexplained delay
- 3.Whether the Claimant's advocate's explanation of conflicting court attendance on 14 December 2023 was credible and corroborated
- 4.Whether the Motion met the threshold for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key legal issues
#Whether the delay of about two months in moving the Court after dismissal was explained
The delay was inordinate and unexplained, warranting refusal to reinstate.
The Cause was dismissed on 14 December 2023 and the Motion was filed on 29 February 2024. The Claimant offered no explanation for the two months of inaction. The advocate's claim of attendance before the High Court in Kapenguria on 14 December 2023 was contradicted by the e-filing system extract showing sessions on 13 and 15 December 2023 only. The explanation was therefore uncorroborated.
Whether the Claimant's conduct showed diligence in prosecuting the Cause
The Claimant and his advocate had woefully failed to comply with directions and act diligently.
The record showed the Claimant and his advocate failed to comply with court directions: the Claimant failed to attend mentions on 7 November 2023 and 14 December 2023 despite service, and filed submissions on the instant Motion outside the agreed timelines. The Claimant also declined to pursue the Respondent's offer of reinstatement to work. This pattern of indolence weighed against reinstatement.
Whether the Motion met the legal threshold for review under Rule 33 of the ELRC (Procedure) Rules, 2016
The Motion did not meet the threshold and was declined.
The Respondent asserted the Motion was incurably defective, supported by an affidavit sworn before the Motion was prepared, with unsealed exhibits, and that it did not meet the Rule 33 review threshold. The Court, considering the delay, lack of corroboration and the Claimant's indolence, concluded the Motion should be declined.
Legal principles established
#- A party seeking to set aside a dismissal of a cause must offer a credible, corroborated explanation and must act with diligence; inordinate and unexplained delay disentitles the party to reinstatement.
Court orders
#- 1.The Motion filed in Court on 29 February 2024 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 33 (review/reinstatement jurisdiction invoked by the parties)
Relief refused
#Setting aside the dismissal of the Cause of 14 December 2023 and reinstatement of the Cause
Inordinate unexplained delay of two months; uncorroborated explanation by the Claimant's advocate; a record of indolence and non-compliance with directions; Motion did not meet the Rule 33 review threshold
Costs
The Motion was 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.
The Motion filed in Court on 29 February 2024 is found without merit and is dismissed with costs.
No explanation has been ofiered at all for the inaction, and the Court finds there was an inordinate delay.
A perusal of the record indicates that the Claimant and his advocate have woefully failed to comply with court directions and/or act with diligence in prosecuting the Cause.
it even appears that the Claimant did not take seriously the Respondent’s ofier to reinstate him to work 4 years after dismissal from employment despite the law prescribing a 3-year limitation.
Issues in the judgment
#Date inconsistency in the record: the replying affidavit is stated as filed on 19 March 2023, while the directions were given on 18 March 2024 and the Motion was filed in February 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo v National Transport and Safety Authority (Cause 160 of 2017) [2024] KEELRC 879 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/879/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.