“Judgment is a judicial determination the decision of a Court the decision or sentence of a Court on the main question in a proceeding or/one of the questions, if there are several.” According to Jowitt’s Dictionary of English Law 2nd ed p 1025: “Rule 4(1) does not say “judgment shall be entered for the defendant or against the Plaintiff.” It uses the word “dismissed.” The Civil Procedure Act does not define the word “judgment”. The predecessor of this Court answered that issue in the affirmative when considering the dismissal of a suit for failure by the Plaintiff to attend Court in the case of Peter Ngome vs Plantex Company Limited eKLR. In Stephen Mwangi Kimote v Murata Sacco Society eKLR the court reaffirmed the decision in f Njue Ngai v Ephantus Njiru & Anor CA 29 of 2015 and held that Īnother issue may arise as to whether a dismissal of a suit for non-attendance of the Plaintiff or for wants of prosecution, amounts to a judgment in that suit. Once a suit is dismissed, there is a final order. Where the court finds merit in the application, costs for attendance and defending the application should be awarded to the respondent.Īn order dismissing suit for non-attendance of court is serious and to be vacated, cogent reasons must be given by an applicant seeking reinstatement of the suit. Mr Nzioka also avers that the claim was filed in 2016 and without the claimant supporting his application the same should be dismissed with costs. The application is supported by the advocate and not the claimant an indication that the claimant is still not available. There was no contract to the respondent’s office or the court to report such hitch. The claimant’s advocate is merely taking an easy way out as there will be no way of verifying the alleged technical hitch in accessing the court. The claimant remained absent leading to dismissal the suit with costs to the respondent. Mr Nzioka also avers that on 4 th February, 2021 when the matter came up in court for hearing he was in court together with his advocate when he was ready for the hearing of the matter. In reply, the respondent filed the Replying Affidavit of Raymond Nzioka the human resource manager and avers that courts have been conducting virtual proceedings since the year 2020 and every advocate is expected to have full knowledge and experience in accessing the court virtually and cannot blame technical hitches. The claimant has been eager to be heard on his case and should not be punished for the mistake of his advocate. In his affidavit, Mr Upendo avers that he is counsel for the claimant and on 4 th February, 2021 experienced technical hitch on the gadget he was using to access virtual proceedings and was not able to address the court when the matter was called. The claimant has never postponed this matter or failed to attend court when required and the unforeseen circumstances that he faced were beyond his control. The application is supported by the affidavit of Upendo Ignacious Allan and on the grounds that on 4 th February, 2021 the suit herein was dismissed for non-attendance because the claimant’s advocate experienced technical hitches on the gadget he was using and was unable to address the court when the matter was called and the same was dismissed. The claimant filed application dated 8 th February, 2021 seeking for orders that the dismissal order issued on 4 th February, 2021 be set aside and the suit be reinstated for hearing on merit and a hearing date be allocated on priority basis. IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA ATĪUGUSTINE OJIAMBO.CLAIMANTīRINKS SECURITY SERVICES LIMITED.RESPONDENT
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