Harriet Nolega Aduvanga v Chandarana Supermarket [2018] KEELRC 1374 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1221 OF 2014
HARRIET NOLEGA ADUVANGA..........................CLAIMANT
V
CHANDARANA SUPERMARKET......................RESPONDENT
RULING
1. On 9 November 2017, Mr. Wachira holding brief for Mr. Apollo for the Claimant and Mr. Githinji holding brief for Mr. Kimani appeared before the Deputy Registrar and requested for a hearing date.
2. The Deputy Registrar scheduled the hearing for 23 January 2018.
3. When the Cause was called out for hearing on the scheduled date, the Claimant and her advocate were absent.
4. The Respondent, represented by Mr. Kimani indicated that he was not ready to proceed.
5. The Court, considering that the Claimant and her advocate were not Court (there was no explanation for the absence) dismissed the Cause.
6. On 28 May 2018, the Claimant through Kariuki, Kiplangat, Lesaigor Associates filed a motion seeking orders
1. …
2. THAT this Honourable Court be pleased to issue orders granting leave to the firm of KARIUKI, KIPLANGAT, LESAIGOR & ASSOCIATE ADVOCATES to come on record in place of the firm of ONGICHO-ONGICHO & CO. ADVOCATES.
3. THATthis Honourable Court be pleased to issue an Order setting aside the Court’s order dated 23 January 2018 dismissing the Claimant’s Cause.
4. THAT upon grant of prayer 2 this Honourable Court do make an order reinstating the Claimant’s suit.
5. THAT costs be in the cause.
7. Although served with the application, the Respondent did not file any grounds of opposition or replying affidavit. An attempt by the Respondent to secure more time was declined by the Court but it was allowed to submit based on the material on record and the law.
8. In seeking the setting aside and reinstatement of the dismissed Cause, it was contended that the Claimant’s previous advocate on record Ongicho-Ongicho & Co. Advocates did not inform her of the hearing date; that the mistake of the said advocate should not be visited upon the Claimant; that the Claimant stood to suffer substantial loss and the application was filed without undue delay.
9. In opposing the application, the Respondent asserted that the application was defective as the firm of Ongicho-Ongicho & Co. Advocates were not on record (Ogosso & Associates Advocates had filed Notice of Change of Advocates on 16 October 2015 to act for the Claimant).
10. The Court is being called upon to exercise judicial discretionary power (see Mbogo & Another v Shah(1968) EA 15).
11. The Claimant’s main ground for seeking the orders sought is predicated on the assumption that the firm of Ongicho-Ongicho & Co. Advocates were on record.
12. That is not the position as was urged by the Respondent and consequently the factual anchor to the Claimant’s application flounders and in that regard, the Court has no factual basis upon which it could exercise its discretion in favour of the Claimant.
13. The Court also notes that Claimant was eerily quiet and did not make any attempt to disclose whether she had changed advocates.
14. The Claimant further urged that she stood to suffer substantial loss.
15. In the view of the Court, that is not necessarily correct.
16. If the firm of Ongicho-Ongicho & Co. Advocate were on record, their failure to communicate the hearing date would not only lead to a cause of action for professional negligence but disciplinary action.
17. And if the Claimant had not instructed Ogosso & Associates, a serious case of malpractice would have been boiling on the horizon. There was no disclosure as to that option.
18. Considering the above, the Court comes to the conclusion that this is not a suitable case to exercise its discretion in favour of the Claimant.
19. The application is dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 27th day of July 2018.
Radido Stephen
Judge
Appearances
For applicant Mr. Lesaigor instructed by Kariuki Kiplangat, Leisagor & Associates Advocates
For Respondent Mr. Kimani instructed by Macharia-Mwangi & Njeru Advocates
Court Assistant Lindsey