Edward Koli v Attorney General & Permanent Secretary Ministry of Health [2015] KEELRC 913 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 225 OF 2014

(Originally Eldoret High Court Civil Case No. 67 of 2005)

EDWARD KOLI………………..............................………………………..CLAIMANT

v

THE HON. ATTORNEY GENERAL................................…………1ST RESPONDENT

THE PERMANENT SECRETARY MINISTRY OF HEALTH…….2ND RESPONDENT

RULING

1. This Cause was originally filed before the Eldoret High Court in 2005. It has been in the Courts for approximately 10 years now. It was transferred to this Court on 11 June 2014, on the application of the Claimant.

2. On 21 July 2014 the Court, in the absence of both parties directed the Deputy Registrar to notify the parties to appear in court on 26 September 2014 for directions.

3. The Deputy Registrar notified the parties through a notice dated 24 July 2014 to appear as directed by the Court.

4. On 26 September 2014 only the Respondent heeded the notice. The Court in the presence of Mr. Kirui for the Respondent and in the absence of the Claimant directed Mr. Kirui to serve a mention notice set for 17 October 2014.

5. On 17 October 2014, Mr. Marati appeared for the Claimant while Mr. Kirui was present for the Respondent. The Claimant sought leave to amend the Memorandum of Claim and the Court granted him leave to file the same before 31 October 2014. The Respondent was granted corresponding leave to file an Amended Response before 15 November 2014. Mention was fixed for 18 November 2014 to confirm compliance.

6. On 18 November 2014 none of the parties or their counsels were in Court and the Court directed the Deputy Registrar to issue a show cause notice to the parties to show cause why the suit should not be dismissed. Return date was set for 28 November 2014.

7. The Deputy Registrar issued a notice on 20 November 2014, but on the return date none of the parties was represented and the Court dismissed the suit.

8. The dismissal prompted the Claimant to file a motion on 1 April 2015 seeking that the suit be reinstated for hearing and disposal. Together with the motion, the firm of Gichuki Gashuki & Co. Advocates filed a Notice of Change of Advocate to come on record for the Claimant instead of J.D. Oduor & Co. Advocates.

9. The Court directed the motion to be served for inter partes hearing but when it was eventually heard on 7 May 2015, the Respondent’s were not represented, though Mr. Kirui was present in Court on 17 April 2015 when the date was fixed.

10. The Claimant’s application primarily seeks the setting aside of the dismissal order (although not expressly prayed for) and ultimately reinstatement of the Cause.

11. The grounds advanced by the Claimant were that he could not give instructions to his former advocates because of financial difficulties; that he lost his phone and could not communicate; that the mistake was on the part of the former Advocates; that the former advocates confirmed receiving the dismissal notice; that the current firm of Advocates were offering him free legal services and that the Respondents would not suffer any prejudice.

12. The Claimant has admitted in his supporting affidavit that the former Advocates on record received the dismissal notice from Court. The said Advocates did not attend Court.

13. Once an Advocate has been retained, he has a professional obligation to attend Court when required whether he has been instructed or not. Advocates must not forget that they are officers of the Court.

14. The Claimant has not stated when he lost his phone and or any efforts he made to contact his advocates on record. The Court is of the view that the Claimant has not made a candid disclosure of all the relevant facts.

15. It is clear from the record that it is the Court which was prompting the Claimant to prosecute his case.

16. Setting aside and or reinstating a suit after dismissal is discretionary. The discretion should not be exercised arbitrarily or capriciously. But it should be informed by the material placed before Court.

17. The Court’s view is that the Claimant has not placed sufficient material before it to enable it exercise its discretion in his favour. In any case, the Claimant is not without other effective remedy.

18. The Court therefore refuses to exercise its discretion as sought and orders that the motion dated 1 April 2015 be dismissed with no order as to costs.

Delivered, dated and signed in Nakuru on this 19th day of June 2015.

Radido Stephen

Judge

Appearances

For Claimant                                                Mr. Murunga instructed by Gichuki Gashuki & Co. Advocates

For Respondents                                        Mr. Kirui, State Counsel, Office of the Attorney General

Court Assistant                                            Nixon