Jonyo v Mini Bakeries (N) Limited (Miscellaneous Application E001 of 2026) [2026] KEELRC 1399 (KLR) (25 May 2026) (Ruling)

Jonyo v Mini Bakeries (N) Limited (Miscellaneous Application E001 of 2026) [2026] KEELRC 1399 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1399 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Miscellaneous Application E001 of 2026 Nzioki wa Makau, J May 25, 2026 Between Alfred Odhiambo Jonyo Applicant and Mini Bakeries (N) Limited Respondent Ruling 1.Through an application dated 21st April 2026, the Applicant seeks the setting aside of this Court’s order issued on the same date dismissing the matter for want of prosecution. He further seeks the reinstatement of the suit for hearing on its merits together with costs of the application. The application is premised on the grounds appearing on its face and is supported by the affidavit of Ms. Achieng Yvonne, Counsel for the Applicant. Counsel depones that on the material day, she logged into the virtual court session at 9.00am and awaited admission into the proceedings. She avers that despite communication that the court session would commence at 9.30am, she had still not been admitted by 9.58am. She further states that at 10.14am. she contacted the court registry and was informed that the court had commenced at 9.30am. According to counsel, she was eventually admitted into the virtual session at 10.20am, by which time the matter had already been dismissed. She therefore submits that the failure to attend court was inadvertent. Counsel further attributes the non-attendance to the fact that the matter, though listed as number 20 on the cause list, was called out prematurely before she had been admitted into the session. Consequently, she urges the Court to allow the application, contending that the Applicant remains keen on prosecuting the matter. 2.In opposition to the application, the Respondent filed a replying affidavit sworn by Mr. Dancan Njoga Counsel for the Respondent. He depones that on the scheduled hearing date, neither the Applicant nor his advocate attended court despite having been served with a direction notice dated 19th March 2026. He further avers that the non-attendance was not an isolated incident, as both the Applicant and his Counsel had similarly failed to attend court on 18th March 2026 when the matter previously came up for hearing. The Respondent contends that the repeated non-attendance demonstrates lack of diligence, disinterest in prosecuting the matter, and disregard for the court process. For that reason, he urges the Court to dismiss the application for being frivolous, vexatious, and an abuse of the court process. He further contends that the continued delay has occasioned prejudice to the Respondent through unnecessary legal costs and delayed finalization of the matter. 3.In response, the Applicant filed a further affidavit on 6th May 2026. Counsel depones that on 18th March 2026, she had several matters that had been cause listed before this Court, specifically matters numbers 6, 7, 8, 9, 10, 11, 13, and 14. She avers, however, that this matter, which was listed as number 17, was called out earlier than expected. Counsel further depones that the Respondent had itself failed to comply with court directions by neglecting to serve a response to the main application dated 29th January 2026. She therefore contends that it would be improper for the Respondent to benefit from the dismissal of the matter while itself being in default of court directions. 4.In rejoinder, the Respondent filed a further affidavit on 5th May 2026. Counsel for the Respondent submits that the Applicant’s attempt to justify the non-attendance on 18th March 2026 has no bearing on the failure to attend court on 21st April 2026. He further avers that reference to the Respondent’s alleged non-compliance with court directions is irrelevant and merely intended to introduce extraneous issues into the proceedings. Counsel therefore submits that, given the Applicant’s deliberate failure to attend court, the application ought to be dismissed with costs. 5.The application was canvassed by way of written submissions. Applicant’s Submissions 6.The Applicant identifies the issues for determination as whether sufficient cause has been demonstrated to warrant the setting aside of the dismissal order and whether the matter should be reinstated. The Applicant submits that the non-attendance was excusable and inadvertent. He submits that failure to participate in the proceedings was occasioned by circumstances beyond counsel’s control. He highlights the fact that counsel logged into virtual court in good time, remained in the virtual lobby and thereafter persistently followed up with the registry but was not admitted into the session. In buttressing the issue of excusable mistake, the Applicant cites the case of Shah v Mbogo [1967] EA 116 where the court held that discretion to set aside orders is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, and not to assist a litigant who deliberately seeks to obstruct or delay the course of justice. 7.With regard to the Respondent’s contention that a pattern of non-attendance existed, the Applicant submits that it is misleading. He reiterates that on 18th March 2026 his Counsel had several matters before the court which were listed ahead of this matter and, upon concluding them, counsel inquired about the instant matter only to learn that it had been called out earlier than anticipated and directions issued. The Applicant submits that the said directions were complied with promptly, thereby demonstrating diligence rather than indolence. The Applicant also submits that the fact that the matter was listed later in the cause list but called out earlier materially contributed to counsel’s inability to participate. In further support of application, the Applicant submits that the dismissal of the matter without affording him an opportunity to be heard violated his constitutional right to a fair hearing under Article 50 of the Constitution. He submits that having logged in, fairness dictated that the matter either be placed aside or he be summoned to show cause before a dismissal order issues. He relies on Bernard Mwangi Ndungu & another v Rodrick Karanja Ngure [2022] eKLR where the court cited with approval the cases of Shah v Mbogo [1967] EA 116, Bouchard International (Services) Ltd v Philip Nzioki M'Mwereria [1987] KECA 75 (KLR) and Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited [2020] eKLR, in which it was stated:“The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice." 8.The Applicant further submits that having acted promptly upon learning of the dismissal demonstrates seriousness in prosecuting the matter entitles him to the court’s discretion. He asserts that the authorities relied upon by the Respondent namely Shah v Mbogo [1967] EA 116, Savings & Loan (K) Ltd v Susan Wanjiru Muritu [2002] eKLR, Ivita v Kyumbu [1984] KLR 441 and Lindsay Petroleum Co v Hurd [1874] L.R. 5 P.С. 221, actually supports the application as there was no deliberate delay, inexcusable conduct or abuse of the court process. 9.With respect to reinstatement, the Applicant urges the Court to uphold the overriding objective and substantive justice by reinstating the matter. He asserts that it would occasion no prejudice to the Respondent, whereas refusal would gravely prejudice him by shutting him out of a hearing on merits. The Applicant submits that dismissal of the application would amount to punishing him for seeking redress in court. 10.All in all, the Applicant urges the Court to be guided by the holding in Bouchard International (Services) Ltd v M'Mwereria [1987] KLR 193, that the court is duty bound to review the whole situation and ensure that justice and common sense prevail, and that even where sufficient cause is not fully shown, the court may still invoke its inherent jurisdiction to avoid injustice. On the strength of the foregoing, he urges the court to allow the application. Respondent’s Submissions 11.The Respondent submits that the Applicant is not entitled to the court’s discretion. It asserts that the non-attendance was neither isolated nor inadvertent, but rather formed part of a consistent pattern of indolence and lack of diligence in prosecution of the matter. The Respondent points to the prior non-attendance of the 18th March 2026. It submits that the repeated failure to attend Court on both 18th March 2026 and 21st April 2026 amounts to wilful default, neglect of duty, and disregard of the Court process rather than an excusable mistake or inadvertence. It points to the Applicant’s conspicuous silence on the non-attendance of 18th March 2026 as reinforcement of the pattern of laxity. 12.The Respondent further submits that the Applicant’s reliance on the timing of the calling out of his matter is misplaced. It asserts that the order in which matters appear or are called out in the cause list is never guaranteed and remains subject to the discretion of the Court. The Respondent also contends that the Applicant’s allegations concerning the Respondent’s alleged non-compliance with directions or failure to serve responses are irrelevant to the issue presently before the Court. It emphasizes that the duty to attend Court and prosecute the application rested solely upon the Applicant and could not be shifted to the Respondent. In support of its position, the Respondent cites the case of Shah v Mbogo [1967] EA 116, for the proposition that the Court’s discretion to set aside orders is intended to prevent injustice arising from excusable mistake or inadvertence, and not to assist a party who has deliberately sought to obstruct or delay the course of justice. It also references the case of Savings & Loan (K) Ltd v Susan Wanjiru Muritu [2002] eKLR, for the principle that the Court must exercise its discretion judiciously and take into account the conduct of the Applicant. Additional reference is made to The Lindsay Petroleum Co v Hurd [1874] L.R. 5 P.С. 221, for the principle that relief ought to be refused where delay and conduct render it unjust to grant such relief. 13.In view of the foregoing the Respondent submits that reinstatement of the application would occasion prejudice through unnecessary delay, increased legal costs, and prolonged uncertainty in the matter. It further asserts that allowing the application will undermine expeditious disposal of the suit, while effectively rewarding indolence. Consequently, the Respondent urges the Court to dismiss the application with costs for being frivolous, vexatious, and an abuse of the court process. Disposition 14.The Court has considered the plethora of cases cited, which incidentally are common to a large extent. The determination is made in light of the arguments of the parties as well as the law applicable in matters setting aside. The court has a wide discretion to set aside the decision and there are no limits or restrictions on the judge’s discretion. The discretion a court exercises to set aside it’s orders is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error. It is not intended to assist a litigant who deliberately seeks to obstruct or delay the course of justice. The Applicant herein asserts that the Counsel representing him did not access court until 10.20am. Counsel admits there was communication there would be a late start. It was posted on the Advocates whatsapp forum that the court session would commence at 9.30am, she had still not been admitted by 9.58am. According to Counsel, she asserts she was eventually admitted into the virtual session at 10.20am, by which time the matter had already been dismissed. She argued that the failure to attend court was inadvertent. 15.The Court began its sessions at 9.30am and all parties in the lobby were admitted. The Counsel for the Applicant is being disingenuous by attempting to blame the Court for her deliberate failure to attend Court. The very same advocate attended Court in several matters that had been cause listed before this Court, specifically cases listed as numbers 6, 7, 8, 9, 10, 11, 13, and 14. Counsel for the Applicant asserts she was admitted late and that this matter which was listed as number 17 was called out earlier. That is a lie as it is unfathomable how she attended court for the cases listed as numbers 6, 7, 8, 9, 10, 11, 13, and 14 and missed hearing the matter listed as number 17 if it was called out earlier. There is no way that this matter, which was listed as number 17 was called out earlier. All we have is an indolent advocate who left the Court after dealing with the matter listed as number 14 and came back casually hours later to see if the one listed as number 17 was still pending disposal. 16.The right to hearing is not absolute. If that were the case, there would never be need for a party to attend court as they would obtain an automatic readmission of their suit lawfully dismissed for wilful non-attendance. The right to hearing is only in as far as a party is keen to be heard and does not operate as unfettered access to assist a litigant who deliberately seeks to obstruct or delay the course of justice as the Applicant herein is keen to do. This is not the only act of indolence on the part of the Applicant and the pattern demonstrates a litigant who is not keen to prosecute his claim. The foregoing is ample to show there is no merit in the motion before me and the inevitable conclusion is that the only order that commends itself to the Court, is to dismiss the application with costs to the Respondent. Application is hereby dismissed with costs to the Respondent. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF MAY 2026NZIOKI WA MAKAU, MCIARB.JUDGE