Kibinge v Co-operative Bank of Kenya Limited (Cause 843 of 2019) [2024] KEELRC 2570 (KLR)
The bottom line
#The Employment Court refused to reinstate a dismissed employment case because it had already heard and rejected the same explanations, leaving an appeal as the only option.
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 Court could set aside its own order of 6 June 2024 dismissing the Cause for want of prosecution
- 2.Whether the applicant's explanations for failure to prosecute warranted reinstatement of the Cause
Key legal issues
#Whether the Court could reopen its dismissal of the Cause for want of prosecution
The Court could not; it was functus officio having already rejected the same explanations before dismissing the Cause, and the proper remedy was an appeal.
The applicant's grounds in the Motion were that her erstwhile advocates lied that a Notice of Appointment had been filed and that she was an innocent party. The Court found these were the very same reasons earlier given from the bar at the Notice to Show Cause hearing and rejected. Having exercised its discretion and dismissed the Cause, the Court could not relook at the rejected explanations; the applicant's remedy lay in an appeal.
Legal principles established
#- Where a court has dismissed a cause after rejecting a party's explanations at a Notice to Show Cause, the court becomes functus officio and cannot revisit the same explanations; the remedy is an appeal.
Court orders
#- 1.The Motion dated 7 June 2024 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent and review-style jurisdiction of the Employment and Labour Relations Court over its own dismissed Cause (no specific provision cited)
Relief refused
#Setting aside the order of 6 June 2024 dismissing the suit and reinstating the Cause for hearing on merit
The explanations for failure to prosecute had already been tendered and rejected when the Cause was dismissed; the Court is functus officio and the applicant's remedy was an appeal
Costs of the application
Application dismissed with costs to the Respondent
Costs
The Motion dated 7 June 2024 is dismissed with costs (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.
It is not open to this Court to relook at the explanations which were tendered by the Claimant and got rejected by the Court before dismissing the Cause.
The Court is functus oficio and the option available to the Claimant was to lodge an appeal against the dismissal of the Cause.
The Motion dated 7 June 2024 is dismissed with costs.
Issues in the judgment
#The judgment treats its own dismissal for want of prosecution as beyond reconsideration on functus officio grounds, yet funnctus officio is typically raised where a court lacks power to revisit its own final decision; the judgment gives no basis in any cited authority or statute for applying the doctrine here.
Prayer (i) of the Motion is blank/omitted in the judgment, so the full relief sought cannot be confirmed.
The application date is inconsistently referred to as 12 June 2024 and 7 June 2024 in the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibinge v Co-operative Bank of Kenya Limited (Cause 843 of 2019) [2024] KEELRC 2570 (KLR)", Case Analysis (2024). Motion dated 7 June 2024 (Cause dismissed on 6 June 2024 for want of prosecution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2570/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.