Dominic Kibiria Mbogo v Board of Management Gatero Girls Secondary School [2022] KEELRC 339 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

ELRC CAUSE NUMBER 09 OF 2015

DOMINIC  KIBIRIA MBOGO................................................................................................CLAIMANT

-VERSUS-

THE BOARD OF MANAGEMENT GATERO GIRLS SECONDARY SCHOOL.......RESPONDENT

(BEFORE HON. JUSTICE DAVID NDERITU)

RULING

1. INTRODUCTION

1. By way of an application dated 10th February, 2022   expressed to be brought under Sections 1, 1A, 1B, and 3A  of the Civil Procedure Act (Cap 21), and Order 12 Rule  7, Order 51 Rule 1 and 15 of the Civil Procedure Rules,  Article 159 of the Constitution of Kenya, and all other  enabling provisions of the law, the Claimant/Applicant  prays that:

(1) THAT the application be certified urgent and  service be dispensed with in the first instance.

(2) THAT that the Honourable Court be pleased to  vacate and/or set aside the orders of 13th October,  2021 dismissing the suit for non-attendance.

(3) THAT the Honourable court be pleased to  reinstate the suit.

(4) THAT the Honourable court be pleased to fix the  suit for hearing.

2. Although the application does not indicate that it is a  Notice of motion, this court presumes it to be so as that is  the way that such applications should be brought to court.

3. The application is supported by the affidavit of  CATHERINE WANJIKU MUIGAI, Advocate for the  Claimant/Applicant sworn on 10th February, 2022 with  two (2) annextures therero.

4. On 17th June, 2021 the main cause was fixed for hearing  on 13th October, 2021 in the presence of Mr. Chege for the  Claimant.   However, when the matter came up in court for  hearing on  13th October, 2021 neither party appeared and  the court proceeded to dismiss to cause for non-attendance  under Order 12 Rule 1 of the Civil Procedure Rules  which provides as follows:-

“If on the day fixed for hearing, after the suit  has been called on for hearing outside the  court, neither party attends, the court may  dismiss the suit.”

5. It is the dismissal alluded to above that the Claimant is  now challenging to be set aside.

6. The application was filed under certificate of urgency on  10th February, 2022 and on 11th February, 2022 this court  ordered that the same be served upon the Respondent.  The  application finally came up in court for hearing on 15th  March, 2022 and after the court satisfied itself that the  application and a hearing notice had been properly served  upon the Attorney General (AG) for the Respondent it  allowed the hearing of the application to proceed ex-parte.

II. DISPOSAL

7. This court has dutifully and carefully gone through the  supporting affidavit and noted the reasons given for non- attendance of the Claimant and his Counsel.  Counsel  depones that she was unable to join the virtual court due to  the confusion as a result of two links being sent out for this  court.  Counsel has annexed a copy of the causelist for 13th  October, 2021 and an email communication marked  “CWM/2”which was sent to the law firm by one  EUNICE WAMUCII.  The court is not in a position to  establish who Eunice Wamucii is.

8. However, it is clear that if there was any mistake in the  whole process, such mistake is not attainable to the  Claimant.  It would be unfair and unjust to punish the  Claimant for a mistake and confusion in which he played  no part.

9. Order 12 Rule 7 provides as follows:-

“Where under this order judgment has been  entered or the suit has been dismissed, the  court, on application, may set aside or vary  the  judgment or order upon such terms as may be  just.”

10. In view of the foregoing this court hereby sets aside the  order of 13th October, 2021 dismissing this cause for non- attendance and reinstates the same.

11. The Claimant and his Counsel are directed to have this  matter fixed for hearing on priority basis, as it has been  pending in court since 2015, and that the same proceeds to  hearing without any further delay and or unnecessary  adjournments.

12. There is no order as to costs.

DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAKURU THIS 31ST DAY OF MARCH, 2022.

DAVID NDERITU

JUDGE