https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1527

Mbaya v Western Steel Mills Limited & another (Appeal E039 of 2025) [2026] KEELRC 1527 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1527 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Appeal E039 of 2025 MA Onyango, J May 29, 2026 Between David Ouma Mbaya Appellant and Western Steel Mills Limited 1st Respondent Heritage Workforce Limited 2nd Respondent (Being an appeal against the ruling of the Hon. Cherono M. Kesee (PM) dated 17th April 2025 in Eldoret Chief Magistrates Court, Civil Case No. 693 of 2018 David Ouma Mbaya vs Western Steel Mills Limited & Heritage Workforce Limited) Judgment 1.The Appellant instituted the suit against the Respondents before the trial court vide a Plaint dated 27th June 2018 seeking compensation for injuries allegedly sustained in the course of his employment with the Respondents. Upon being served, the 2nd Respondent entered appearance and filed a Statement of Defence dated 16th April 2019 denying the Appellant’s claim in its entirety. 2.The matter subsequently came up before the trial court and was, on 25th June 2024, dismissed for want of prosecution. 3.Aggrieved by the dismissal, the Appellant filed a Notice of Motion dated 24th September 2024 seeking reinstatement of the suit for hearing and determination on its merits. 4.In a ruling dated 17th April 2025, the trial court dismissed the said application, holding that the Appellant had not provided a sufficient explanation for the prolonged period of inactivity leading to dismissal. 5.In the Memorandum of Appeal dated 12th May 2025, the Appellant sets out the following grounds of appeal:a)The learned Magistrate erred in law and fact and rendered a decision that dismissed the Appellant's Application dated 24th September 2024 with costs which Application had sought to review the Ex-Parte orders given on 25th June 2024 which orders dismissed the Appellant's suit for want of prosecution.b)The learned Magistrate erred in law and fact by failing to review the Ex- Parte orders that dismissed the Appellant's suit for want of prosecution and as such failed to act judiciously and hence failing to properly appreciate the facts of this case, the circumstances of this case and the law relating to review under Order 45 of the Civil Procedure Rules 2010.c)The learned Magistrate erred in law and fact by holding that the suit herein was rightfully dismissed and that the Plaintiff/Applicant's advocate or his representative were not keen on ensuring their matter is prosecuted and failed to appreciate the fact that this being a WIBA matter had faced a lot controversies following the Supreme Court's judgment that had declared that the Magistrates Court lacked jurisdiction to deliberate on WIBA matters and that the said WIBA matters had been held in abeyance generally.d)The learned Magistrate erred in law and fact by failing to exercise her discretion judiciously by setting aside the Ex-Parte orders that dismissed the instant suit Ex-Parte for want of prosecution which discretion is envisaged under Order 12 Rule 7 of the Civil Procedure Rules 2010.e)The learned Magistrate erred in law and fact by holding that the instant suit was dismissed 2 years after the issuance of Supreme Court directions on WIBA matters and that there was inordinate, unreasonable and inexcusable delay on plaintiff’s/Appellant’s part and yet the said directions by the Hon. Chief Justice were issued on 28th April 2023 which gave green light for WIBA matters to proceed from where they had reached vide Legal Gazette Notice No. 5476 of 2023 while the Hon. Trial Magistrate dismissed the instant suit on 25th June 2024, Ex-Parte barely 2 months after the said directions were issued.f)The learned Magistrate erred in law and fact by holding that the Hon. Court rightly invoked the provisions of Order 17 Rule 2 of the Civil Procedure Rules 2010 and failed to appreciate the following facts and points of law.i.The Hon. trial Magistrate failed to take judicial notice that the WIBA matters had been generally stayed and only became active as from 28th April 2023 vide Legal Gazette Notice No. No. 5476 of 2023 and at the time of dismissal of the instant suit on 25th June 2023, the said Legal Notice was barely 2 months old and hence the instant case was not inactive for one as envisaged under Order 17 Rule 2 of the Civil Procedure Rules 2010ii.The Hon. trial magistrate failed to appreciate the fact that the Honourable Court failed to serve parties for dismissal as envisaged under Order 17 Rule 2 of the Civil Procedure Rules 2010.iii.The Hon. trial Magistrate failed to appreciate the fact that the impugned suo motto dismissal herein did not comply with the provisions of Order 17 Rule 2 of the Civil Procedure Rules 2010.g)The learned Magistrate erred in law and fact by failing to appreciate the fact that immediately the Chief Justice gave green light to the WIBA matters, as the effort to trace the trial court file did not bear fruits given the fact that;i.Most of WIBA matters had been taken to the archives and could not be traced from the Court Registryii.The court clerk could not accept letters that sought the availability of the court.iii.This being a 2018 matter had not been mapped at the time it was dismissed for want of prosecution Ex-Parte on 25th June 2024 and hence could not be tracked from the e-filing portal system as alluded to by the Hon. trial Magistrate.h)The learned Magistrate erred in law and fact by holding that the Appellants advocate on 12th April 2023 had received the mention notice dated 12th April 2023 from the Respondent's Advocates for 28th June 2023 under protest and failed to appreciate the following facts and points of law:-i.The Hon. trial Magistrate failed to appreciate the fact that genesis of the said protest which was captured on the said Mention Notice pointing out that the WIBA matters as at 12th April 2023 had been stayed in abeyance and there was no indication that they were to proceed.ii.The Hon. trial Magistrate failed to appreciate the fact that WIBA maters were only given green light to proceed from where they had reached on the 28th April 2023 and hence as at 12th April 2023, the said protest was proper and valid.iii.The Hon. trial Magistrate failed to appreciate the reasons of the said protest which were to the effect as at 12th April 2023 when the said notice was served on Appellants advocates, the WIBA matters had been held in abeyance and were not active.i)The learned Magistrate erred in law and fact in holding that when this matter came up for dismissal on 25th June 2024, the Respondents Advocates were present in court while the Appellant's Advocates were absent but failed to appreciate the fact that neither the Appellant's Advocates nor the Appellant had been notified of the said Notice to Show Cause for dismissal on 25th June 2024 as envisaged under the provisions of Order 17 Rule 2 of the Civil Procedure Rules 2010.j)The learned Magistrate erred in law and fact by holding that the Applicant failed to provide sufficient explanation for prolonged of inactivity leading to dismissal, that the delay is inordinate and that equity aids the vigilant, not the indolent, that reinstating the plaintiff's suit undermines the principle of finality and that the delay was inordinate without plausible justification and totally failed to appreciate the following facts and points of law.i.The Hon. trial Magistrate failed to appreciate the fact that there was no inordinate delay as alluded to it by the Hon. Trial magistrate bearing in mind that WIBA matters were activated on 28th April 2024 and the instant suit was dismissed on 25th June 2024, barely 2 months period.ii.The Hon. trial Magistrate failed to appreciate the fact that if there was any delay, there was only a delay of two months, which in essence is not inordinate bearing in mind the inordinate delay contemplated under Order 17 Rule 2 of the Civil Procedure Rules 2010, is one year period of inactiveness.iii.The Hon. trial Magistrate misapplied the principles of the Maxin, Equity only aids the vigilant not the indolent, and failed to take judicial notice of the circumstances that surrounded the WIBA matters.k)The learned Magistrate erred in law and fact by holding that both the Appellant Advocates and the Appellant had a duty to follow-up with the matters in court and failed to appreciate the following facts and points of law: -i.The Hon. trial Magistrate failed to appreciate the fact that failure on part of the Advocate to attend court on 25th June 2024 when the matter came up for dismissal was not deliberate and that an innocent litigant ought not be punished for an innocent mistake occasioned by his counsel.ii.The Hon. trial Magistrate failed to appreciate the fact that the Court had a duty to notify all parties for the said dismissal that taken out suo motto by dint of the provisions of Order 17 Rule 2 of the Civil Procedure Rules 2010.l)The learned Magistrate erred in law and fact by holding that the plaintiff’s suit was dismissed on 25th June 2024 for want of prosecution and failed to appreciate the fact that the same was done in total violation of Order 17 Rule 2(1) of the Civil Procedure Rules 2O10 which requires that for a suit to be dismissed suo motto after being in active for 12 months a notice for dismissal must be served to the parties concerned.m)The learned Magistrate erred in law and fact by holding that the plaintiff’s suit was rightfully dismissed on 25th June 2024 for want of prosecution and failed to appreciate the fact that the same was dismissed Ex-Parte and as such the Appellant was condemned unheard in total violation of the doctrine of audi alteram partem.n)The learned Magistrate erred in law and in fact by failing to be impartial in handling the Appellants application dated 24th September 2024 as she demonstrated traits of being partisan and biased in her ruling dated 17th April 2025.o)The learned Magistrate erred in law and fact in dismissing the Appellant's Application dated 24th September 2024 in total disregard of the provisions of the Constitution, the statutes, the Case Law, the law in general and in particular the Legal Gazette Notice No. No. 5476 of 2023 that was published in Kenya Gazette on 28th April 2023 which Legal Notice gave green light to all WIBA matters that had been held in abeyance. 6.Consequently, the Appellant prays that the appeal be allowed and the ruling/order dismissing the Appellant’s application dated 24th September, 2024 be set aside and the following orders be granted: -a.That the application dated 24th September 2024 filed in the trial court be allowed with costsb.That the Ex-parte orders of the chief magistrate’s court given on 25th June 2024 dismissing the Plaintiff/Appellant’s suit for want of prosecution be reviewed and be set asidec.That the Plaintiff/Appellant’s suit be reinstated for hearing and determination on merit. 7.Pursuant to the directions of this court, the appeal disposed of by way of written submissions. Both parties filed their respective submissions. Appellant’s Submissions 8.In his submissions dated 11th May 2026, the Appellant identified the issues for determination to be: -i.Whether there was inordinate delay on part of the Plaintiff in prosecuting his caseii.Whether the trial court followed due procedure in dismissing the instant suit suo motto under the provisions of order 17 Rule 2 of the Civil Procedure Rules,2010 9.On the first issue, the Appellant submitted that the matter came up before the trial court on 6th February 2023 when the same was scheduled for hearing of the application dated 31st October 2022 on 30th August 2022 in the presence of all parties. That on the said 30th October 2023, the court did not sit until 25th June 2024 when the matter was dismissed suo motto in the absence of all parties. 10.It is the Appellant’s submission that the Chief Justice’s directions relating to WIBA matters were issued on 28th April 2023 and the suit herein was dismissed on 25th June 2024, approximately one year and two months thereafter. 11.According to the Appellant, immediately after the issuance of the practice directions relating to WIBA matters on 28th April 2023, his advocate through the letter dated 6th May 2023 requested for the court file so as to take out a hearing date in vain. It is submitted that all along the court file could not be traced only to realize later that the plaintiff’s suit had been dismissed for want of prosecution on 25th June 2024. 12.The Appellant aver that from 30th August 2022 when this matter was to proceed for hearing to 25th June 2024 when the same was dismissed for want of prosecution. It is the Appellant’s submission that this matter was not activated after the issuance of the directions on WIBA matters that were pending in court by the Chief Justice since the court file could not be traced. That the first time this matter came up in court was on 25th June 2024 whereby it was dismissed in the absence of all parties. 13.It is the Appellant’s submission that that the Appellant did not fail to attend court after the activation of the matter since the court file could not be traced and the same was never set down for hearing. Further, it is submitted that the instant suit was not ripe for dismissal since there was an application on record dated 31st October 2022 that was pending hearing and determination. 14.The Appellant thus submits that the trial magistrate erred as this matter only came up once on 25th June 2024 after the chief justice had issued directives when the same was dismissed in the absence of all parties. 15.On this basis, the Appellant submitted that he was not solely to blame for the delay in the prosecution of his case as the delay in question was not deliberate and the same was occasioned by circumstances beyond his control. The court was thus urged to reinstate the suit for hearing and determination on the merits. 16.On the second issue, the Appellant submitted that the trial court was not justified in dismissing the instant suit for want of prosecution suo motto as no party was present when the suit was dismissed on 25th June 2024 pursuant to the provisions of Order 17 Rule 2(1) of the Civil Procedure Rules, 2010. 17.The Appellant submitted that for a matter to qualify for dismissal suo motto under the said provision, the court must first satisfy itself that no step has been taken in the suit for a period of at least one year; that notice of the intended dismissal has been issued to the parties and lastly, that the court exercises its discretion fairly and judiciously. 18.On the first condition, the Appellant submitted that the dismissal did not meet the threshold contemplated under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010 which requires inactivity for a period of twelve months before a suit may be dismissed for want of prosecution. It was submitted that although the matter may not have been active for a period approaching one year, the same was not ripe for dismissal considering that WIBA matters across the country had generally remained in abeyance following the uncertainty arising from the Supreme Court decision relating to WIBA jurisdiction. 19.The Appellant further submitted that despite the trial magistrate taking judicial notice of the stay affecting WIBA matters, the court nonetheless proceeded to dismiss the suit unjustifiably. According to the Appellant, the matter was activated on 25th June 2024 after the chief Justice issued practice directives on 24th March 2024 through Legal Gazette Notice No. 5476 of 2023 whereby it came up for on the said 25th June 2024 without the knowledge of the parties. 20.The Appellant therefore submitted that the suit was prematurely listed for dismissal yet there was an application on record that has been scheduled for hearing before the suit came up for dismissal. 21.On the second condition whether notice of dismissal had been served upon the parties, the Appellant submitted that no notice to show cause or notice of intended dismissal was ever issued. The Appellant averred that on 25th June 2024, the matter had merely been listed for mention and no indication had been given that the suit would be dismissed for want of prosecution, hence explaining the absence of all parties. The Appellant therefore submitted that the dismissal orders were irregular and unjustified. 22.On the third condition, the Appellant relying on the decision in Thathini Development Company Limited v Mombasa Water & Sewerage Company & Another (2022) eKLR, submitted that the trial court failed to exercise its discretion fairly and judiciously given that WIBA matters had remained in abeyance pending directions by the Honourable Chief Justice and that immediately after the directions were issued, the court proceeded to list the matter for dismissal without issuing notice to the parties. In support of this position, the Appellant also relied on the decisions in Rose Makokha Mteka v Oserian Development Co. Limited (2022) eKLR and Naftali Opondo Onyango v National Bank of Kenya Limited (2005) eKLR. 23.In the end, the Appellant urged the court to set aside the orders dismissing the suit for want of prosecution and reinstate the suit for hearing and determination on the merits. The 1st Respondent’s Submissions 24.On its part, the 1st Respondent filed submissions dated 30th March 2026 in which it framed the following issues for determination: -i.Whether the trial court erred in law and fact in dismissing the Appellant’s application seeking reinstatement to reinstate the Appellant’s suitii.To whom costs should be awarded 25.On the first issue, the 1st Respondent submitted that following the issuance of the Practice Directions vide Gazette Notice No. 5476 of 2023 by the Chief Justice, all pending WIBA matters were to proceed before the courts in which they had been filed. 26.The 1st Respondent further submitted that following the issuance of the Practice Directions on 28th April 2023, the obligation shifted to the parties to take proactive steps towards fixing their matters for hearing and expeditious determination. It was contended that despite the issuance of the said Directions, the Appellant failed to take any meaningful action towards prosecuting the suit and instead remained inactive until 25th June 2024 when the matter was dismissed for want of prosecution, a period of over one year later.In support of its position, the 1st Respondent relied on the decisions in Wafula v Wepukhulu & 5 Others [2025] KEELC 1421 (KLR) and Ivita v Kyumbu [1984] KLR 441 and submitted that the Appellant had failed to demonstrate sufficient cause to warrant reinstatement of the suit. 27.The 1st Respondent further submitted that Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 empowers the court to dismiss a suit where no action has been taken for a period exceeding one year. It is submitted that the delay in prosecuting the suit herein fell squarely within the ambit of the said provision. 28.Regarding the Appellant’s complaint that no notice to show cause had been issued prior to dismissal, the 1st Respondent submitted that the wording of the applicable rule is discretionary rather than mandatory, the rule providing that the court “may” issue notice to show cause. According to the 1st Respondent, publication of the matter on the Judiciary cause list or Judiciary Kiosk constituted sufficient notice to the parties. 29.In this regard, the 1st Respondent relied on the decision in Professor Mwangi S. Kimenyi v Attorney General & Another, Civil Suit No. 720 of 2009 and submitted that had the Appellant exercised due diligence by routinely checking the Judiciary Kiosk or cause lists, he would have become aware that the matter had been listed for dismissal and would have attended court to show cause why the suit ought not to be dismissed. 30.The 1st Respondent further submitted that even attendance before court upon issuance of a notice to show cause does not automatically guarantee reinstatement or preservation of a suit, as the court must still be satisfied that sufficient cause has been shown. 31.It was further submitted that the reasons advanced by the Appellant for the delay, including allegations that the court file could not be traced, did not constitute sufficient explanation for the prolonged inactivity in the matter. 32.The 1st Respondent also submitted that whereas the suit was dismissed on 25th June 2024, the application seeking reinstatement was only filed on 24th September 2024, approximately three months later and according to the 1st Respondent, no plausible explanation had been offered for that additional delay which demonstrates indolence on the part of the Appellant. 33.The 1st Respondent submitted that reinstating the suit would occasion prejudice to the Respondents given that the matter was instituted in 2018 and had remained pending for an unduly long period. It was contended that litigation must come to an end and that the trial court properly exercised its discretion in declining to reinstate the suit. 34.On costs, the 1st Respondent submitted that costs follow the event and urged the Court to award costs of the appeal to the Respondents. 35.In conclusion, the 1st Respondent maintained that the trial court properly applied the relevant legal principles, considered all material facts and exercised its discretion judiciously in dismissing both the suit and the subsequent application for reinstatement. 36.The Court was therefore urged to dismiss the appeal with costs. Determination 37.I have carefully considered the Record of Appeal, the grounds contained in the Memorandum of Appeal, the rival submissions by the parties as well as the authorities relied upon. In my view, the following issues arise for determination: -i.Whether the dismissal of the Appellant’s suit for want of prosecution complied with the provisions of Order 17 Rule 2 of the Civil Procedure Rulesii.Whether the trial court properly exercised its discretion in declining to reinstate the suit. Whether the dismissal of the Appellant’s suit for want of prosecution complied with the provisions of Order 17 Rule 2 of the Civil Procedure Rules 38.There is no dispute that the Appellant’s suit was dismissed on 25th June 2024 for want of prosecution and that the subsequent application for reinstatement dated 24th September 2024 was dismissed vide the ruling delivered on 17th April 2025, hence the present appeal. 39.The law governing dismissal of suits for want of prosecution is found under Order 17 Rule 2(1) of the Civil Procedure Rules which provides that where no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed and if no cause is shown, may dismiss the suit. 40.In the instant suit, the Appellant’s complaint is that the suit was dismissed suo motto without prior notice to the parties and without affording the Appellant an opportunity to show cause why the matter ought not to be dismissed. 41.The Respondents, on the other hand, contended that publication of the matter on the Judiciary cause list constituted sufficient notice and that the Appellant ought to have exercised diligence by regularly monitoring the status of the matter. 42.While this Court is in agreement with the 1st Respondent’s assertion that litigants bear a duty to actively follow up their matters, the requirement for notice under Order 17 Rule 2 is not a mere procedural technicality. The issuance of a notice to show cause serves the substantive purpose of affording parties an opportunity to explain any delay before the court exercises its discretionary power to dismiss a suit. 43.From the Record before this Court, there is no indication that a formal notice to show cause was issued or served upon the parties prior to the dismissal of the suit on 25th June 2024. Further, although the Respondents argued that publication in the Judiciary Kiosk constituted sufficient notice, no material was placed before this Court to demonstrate that the matter had specifically been listed for notice to show cause proceedings or that the parties had otherwise been notified that dismissal was contemplated. 44.I further note that the dispute herein is a WIBA matter filed during the period when uncertainty existed regarding the jurisdiction of courts to hear work injury claims following the litigation culminating in the Supreme Court decision in Law Society of Kenya v Attorney General & Another, Petition No. 4 of 2019. 45.It is common ground that subsequent directions issued by the Honourable Chief Justice vide Gazette Notice No. 5476 of 2023 gave guidance on the handling of pending WIBA matters. The existence of that uncertainty and the transitional period following the issuance of the Practice Directions were relevant considerations which the trial court ought to have taken into account while exercising its discretion. 46.The principles governing reinstatement of suits are well settled. The discretion of the court ought to be exercised judiciously and in a manner that facilitates substantive justice. 47.I am therefore persuaded that the trial court placed undue emphasis on the delay without sufficiently considering the unique circumstances surrounding pending WIBA matters at the material time and the absence of evidence showing that the Appellant had been accorded an opportunity to show cause before the dismissal order was issued. 48.In the premises, I find that the dismissal of the suit for want of prosecution and the subsequent refusal to reinstate the suit amounted to an injudicious exercise of discretion warranting interference by this Court. 49.Consequently, the appeal is merited and is hereby allowed in the following terms: -i.The ruling and order delivered on 17th April 2025 dismissing the Appellant’s application dated 24th September 2024 are hereby set aside.ii.The orders issued on 25th June 2024 dismissing the Appellant’s suit for want of prosecution are hereby vacated.iii.The Appellant’s suit before the trial court is hereby reinstated for hearing and determination on the merits.iv.Each party shall bear its own costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 29TH DAY OF MAY 2026MAUREEN ONYANGOJUDGE