John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates [2019] eKLR
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO. 386 OF 2017
JOHN KABIRA KIONI...............................................................CLAIMANT/APPLICANT
VERSUS
GEORGE NAMASAKA SICHANGI t/a SICHANGI ADVOCATES.........RESPONDENT
RULING
1. The Claimant seeks to set aside the order of the court dismissing the suit for non attendance. In his motion he asserts that the
failure to attend court was inadvertent and on account of factors beyond his control. In the affidavits supporting the motion, he and
his advocate indicate that they had matters in other courts and that it was unfortunate that the matter was called before they could
return to this court for the hearing of the suit. They urge the court to find that the failure to be present at the time the matter was
called for hearing was an excusable mistake or error and that the court in keeping with the main concern to do justice to parties
should allow the motion. They assert that the Respondent will not suffer any prejudice should the reinstatement be ordered.
2. The Respondent is opposed to the reinstatement of the suit and the affidavit in reply asserts that the application lacks merit and
ought to be dismissed with costs.
3. The motion seeking the setting aside of the order dismissing the suit was made timeously meaning there was no delay. In the case
of Mbogo & Another v Shah [1968] EA 93 and Pithon Waweru Maina v Thuku Mugiria [1983] KLR 78, the law on setting
aside of ex parte judgment or order was considered in great detail. The principles governing the exercise of the judicial discretion to
set aside an ex parte judgment obtained in default of either party to attend the hearing are:
i. Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just
because the main concern of the court is to do justice to the parties.
ii. Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or
excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to
obstruct or delay the course of justice.
iii.A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically
4. The Claimant/Applicant asserts accident, inadvertence and excusable mistake or error. The Claimant is an advocate of the High
Court of Kenya and practices before this court. He knows that the court sets time for cases and hears them at the appointed time
without deviation. His advocate also practices in this court and he too is aware of the same. They both were absent when the matter
was called leading to the dismissal of the suit. Was this a mistake or error that is excusable" I think not. Discretion to be exercised in
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John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates [2019] eKLR
setting aside is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay
the course of justice. The failure to attend by the 2 advocates is a deliberate delay of the course of justice. In the final result the
motion is dismissed with costs to the Respondent.
It is so ordered.
Dated and delivered at Nyeri this 9th day of April 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar
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