https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1604

Eteleti v Vegpro K Ltd (Employment and Labour Relations Cause E070 of 2025) [2026] KEELRC 1604 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1604 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Cause E070 of 2025 AN Mwaure, J June 12, 2026 Between Francis Lochid Eteleti Applicant and Vegpro K Ltd Respondent Ruling Introduction 1.The Claimant/Applicant filed a Notice of Motion dated 3rd March 2026 under Certificate of urgency seeking the following orders that:a.Spentb.The orders of this Honourable court issued on the 2nd March, 2026, dismissing the Claimant’s suit for want of prosecution, be set aside and/or vacated.c.The suit be reinstated for hearing and determination on merit. 2.The application is brought under Order 12 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, and sections 1A, 1B, 3A of the Civil Procedure Act and all enabling provisions of the law. Claimant/Applicant’s case 3.The application is supported by the supporting affidavit of Claimant/Applicant herein, dated even date as the application. 4.The Claimant/Applicant avers that his suit was dismissed on 2nd February 2026 for non‑attendance caused by illness, frailty due to advanced age, and technological challenges in accessing the virtual court platform. 5.The Claimant/Applicant emphasizes that he was never formally served with a notice to show cause but only received a misleading phone call from the registry giving the wrong date. 6.The Claimant/Applicant avers that his absence was not deliberate, and upon learning of the dismissal, he promptly instructed counsel to handle future proceedings. 7.The Claimant/Applicant maintains that the case raises serious triable issues, that he will suffer grave prejudice if denied a hearing on merit, and that reinstatement will not prejudice the Respondent, urging the court to reinstate the suit in the interest of justice. Respondent’s replying affidavit 8.The Respondent opposed the application vide a replying affidavit sworn by Joshua Were Dudi, the Respondent’s Human Resource Manager, dated 16th March 2026. 9.The Respondent avers that the Claimant/Applicant was indolent in prosecuting his case, failed to attend court without substantiated reasons, and provided no evidence of alleged technological challenges or registry miscommunication. 10.The Respondent emphasizes that the dismissal of the suit on 2nd March 2026 under Rule 43 of the ELRC Procedure Rules, 2024 was proper, and that litigation belongs to the parties who must diligently prosecute their claims. 11.The Respondent further contends that the application is an afterthought intended to delay finality, is frivolous and vexatious, and that no meritorious case has been demonstrated. 12.The Respondent therefore prays that the Claimant’s application be dismissed with costs. 13.Parties canvassed the application by way of written submissions. Claimant/Applicant’s submissions 14.The Claimant/Applicant submitted that the dismissal of the suit on 2nd March 2026 was procedurally irregular and unlawful. The Claimant/Applicant contended that Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 permits dismissal only after one year of inactivity, yet his suit was filed on 4th November 2025, less than four months earlier. The Claimant/Applicant further submitted that no written notice to show cause was ever served, as required by law, and therefore the dismissal violated the principle of natural justice (audi alteram partem). The Claimant/Applicant explained that he faced technological challenges accessing virtual court sessions and was misled by registry staff during a phone call, who gave an incorrect date. He maintains that he was not indolent, since he filed the reinstatement application promptly on 3rd March 2026, one day after dismissal, and has since appointed counsel to ensure diligent prosecution. The Claimant/Applicant argued that the Respondent will suffer no prejudice as the matter is still at an early stage, while he risks grave injustice if denied a hearing. 15.The Applicant therefore prays that the suit be reinstated, emphasizing that the dismissal was irregular, premature, and contrary to fairness and equity. Respondent’s submissions 16.The Respondent relied on Rule 74(1) of the Employment and Labour Court (Procedure) Rules, 2024, which provides as follows:“A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.” 17.Order 45 of the Civil Procedure Rules, 2010, as read with section 80 of the Civil Procedure Act, which deals with review on the following grounds:a.Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the application or could not be produced by him at the time when the decree was passed or the order made; orb.On account of some mistake or error apparent or face of the record orc.For any other sufficient reason and whatever the ground, there is a requirement that the application has be made without unreasonable delay. (Emphasis) 18.The Respondent submitted that the power of review is discretionary and relied on the case of Kenya Union of Hair and Beauty Salon Workers v Black Beauty Product Ltd; Kenya Scientific Research International & Technical Institutions Workers Union [2018] eKLR where the court cited the Court of Appeal in Shanzu Investment Ltd V the Commissioner of Lands Civil Appeal No. 100 of 1993 [1993] eKLR where the court stated as follows:“The court has a wide discretion to set aside judgment, and there are limitations, and on the discretion of the judge, except if the judgment is varied, it must be done on terms that are just.” 19.The Respondent submitted that the Claimant/Applicant failed to fulfil the threshold for review and relied on the case of Mwera J in the case of Godfrey Ajuang Okumu –vs– Nicholas Odera Opinya, as was cited in the case of Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers, where he held inter alia that “an aggrieved party seeking a review of a decree or order on whatever basis must apply without unreasonable delay.” 20.Further, the court in Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers observed as follows;“In Mbogo Gatuiku vs A.G HCCC 1983 of 1980, High Court, Nairobi, Mwera J emphasizing on the need to file applications for review without delay, stated that ‘even a delay of a day or two calls for an explanation’.” 21.The Respondent argued that the Claimant/Applicant has not justified the review orders sought or shown that the application was filed without unreasonable delay. The Respondent submitted that a court can only exercise its discretionary powers of review when the applicant meets the conditions set out under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024, Order 45 of the Civil Procedure Rules, 2010, and section 80 of the Civil Procedure Act. Since the Claimant/Applicant has failed to demonstrate that he meets this threshold, the Respondent contends that the application lacks merit and should be dismissed with costs. The Respondent further notes that the Claimant’s allegations of technological challenges, advanced age, misinformation by the registry, and non-service of the Notice to Show Cause are unsubstantiated by any evidence. 22.The Respondent also submitted that the Claimant/Applicant has not provided any documentary proof, such as screenshots, emails, call logs, or affidavits, to substantiate his allegations, and therefore, mere claims cannot justify judicial discretion. The Respondent contended that the Claimant/Applicant’s argument that the dismissal was irregular under Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024, is misconceived, asserting that the court retains inherent jurisdiction and discretionary powers to manage proceedings and prevent abuse of process, including dismissing suits for non-attendance or failure to prosecute. The Respondent further submitted that dismissal is not limited to Rule 43, as the Court may act on its inherent authority. The Respondent emphasizes that the decision to set aside a dismissal order lies within the Court’s discretion, which must be exercised judiciously, relying on the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] KEELC 4676 (KLR), where the court cited the case Shah v Mbogo (1979) EA 116, where it was held that discretion should prevent injustice from excusable mistake but not assist a party who deliberately obstructs or delays justice. 23.On the principle governing the reinstatement of a dismissed suit, the Respondent relied on the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR), where the court held that reinstatement depends on whether reasonable grounds exist, balancing the prejudice to the defendant if reinstated against that to the plaintiff if not. In Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & another [2021] KEELC 3079 (KLR), the court observed as follows:“For the court to exercise its discretion in favour of the Applicant, he or she has to satisfy it that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit.Sufficient Cause was defined by the Supreme Court of India in Parimal vs Veena, which was cited with approval in the case of Wachira Karani v Bildad Wachira [2016] eKLR. In the case, the said Supreme Court stated that: –“sufficient cause” is an expression which has been used in large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended.The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause. (Emphasis mine).” 24.The Respondent submitted that the Claimant/Applicant admitted failing to attend court on the scheduled date, and his explanation for non‑attendance was deemed unsupported and insufficient to overturn the court’s discretion. The Respondent argues that the Claimant’s claim of not being served with a Notice to Show Cause is unfounded, emphasizing that litigants must actively monitor their own cases. It is further submitted that the Claimant provided no evidence of attempts to contact the registry, opposing counsel, or the virtual court assistant regarding alleged technological challenges, and that claims of registry misinformation remain unsubstantiated. While the Respondent expresses sympathy for the Claimant’s age and technological limitations, it maintains that these cannot excuse failure to prosecute diligently. The Respondent stresses that parties have a continuing duty to pursue their cases, and although the Claimant filed his application promptly after dismissal, promptness alone does not justify reinstatement without demonstrating sufficient cause. 25.The Respondent argues that the Claimant’s assertion that the Respondent will suffer no prejudice is unfounded, emphasizing the Respondent’s right to certainty, finality, and expeditious resolution of litigation. The Claimant’s appointment of an advocate to address technological challenges is said not to cure prior indolence or constitute sufficient cause for reinstatement, as no exceptional circumstances have been shown. Citing the case of Shah v Mbogo(Supra), the Respondent stresses that judicial discretion should not aid a litigant who obstructs or delays justice. The Respondent further submitted that the Claimant, being the grievant, bears the primary duty to prosecute his case, as affirmed in Utalii Transport Co. Ltd & 3 Others v N.I.C. Bank & Another (2014) eKLR, which held that plaintiffs must take steps to progress their cases. Similarly, in Ruga Distributors Limited v Nairobi Bottlers Limited [2015] KEHC 214 (KLR), citing the case of Savings and Loans Ltd V Susan Wanjiru Muritu, Nairobi HCC 397/2002, the court held that a case belongs to the litigant, not the advocate, and that dismissal cannot be set aside solely due to counsel’s mistake; litigants must actively monitor their cases. 26.The Respondent concludes that the Claimant/Applicant’s application does not meet the legal threshold for review or reinstatement of dismissal orders. The Respondent urged the court to find that the application dated 3rd March 2026 is devoid of merit and fails to establish sufficient cause, and therefore the Court should dismiss it and uphold the dismissal orders issued on 2nd March 2026, with costs awarded to the Respondent. Analysis and determination 27.The court has considered the application, supporting affidavit, replying affidavit and the submissions on record. The question to answer is whether Claimant has valid reasons to justify reinstatement of his case which was dismissed for non-Prosecution. 28.Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules 2024, provides as follows:“A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—a.if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.” 29.In Board of Trustees National Social Security Fund v Micheal Mwalo [2015] KECA 782 (KLR), the Court of Appeal stated as follows:“It is now settled law that “any other sufficient reason” in Order 45 Rule 1 of the Civil Procedure Rules need not be analogous with the other grounds in the order because clearly Section 80 of the Civil Procedure Act confers an unfettered right to apply for review and so the words “for any other sufficient reason” need not be analogous with the other grounds specified in the Order (see Sandar Mohamed v. Charan Singh [1959] EA 793 at pg 795 f-h.” 30.In Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR), the Court of Appeal cited the classical case of Mbogo and Another v Shah(supra) the court held as follows:“…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”. 31.In Utalii Transport Company Limited & 3 others v Nic Bank Limited & Another(Supra), the court laid down the following principles for dismissal of suit for want of prosecution. These principles are:1)Whether there has been inordinate delay on the part of the Plaintiffs in prosecuting the case;2)Whether the delay is intentional, contumelious and, therefore, inexcusable;3)Whether the delay is an abuse of the court process;4)Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the Defendant;5)What prejudice will the dismissal occasion to the plaintiff?6)Whether the plaintiff has offered a reasonable explanation for the delay;7)Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the court? 32.In the instant case, the Claimant/Applicant instituted the suit through a memorandum of claim dated 3rd November 2025 and filed on 4th November 2025, seeking compensation for terminal benefits, allowances, service pay, and overtime wages from the Respondent. Initially, the Claimant prosecuted the matter in person, but later appointed Mobegi & Co. Advocates on 2nd March 2026. At one point, the matter was listed for mention, but both parties failed to attend, prompting the issuance of a Notice to Show Cause and the subsequent dismissal of the suit on 2nd March 2026. The Respondent maintains that the Court acted properly in dismissing the Claimant’s case. The court in its discretion dismissed the suit as twice the parties failed to attend court and even if the case was filed less than one year if parties show no interest in a case, there is no need to keep it active indefinitely. 33.Having said so however, the court will give Applicant benefit of doubt as he has provided sufficient justification to warrant setting aside or varying the orders issued on 2nd March 2026. It is noted that the Claimant/Applicant appointed counsel on the same date the case was dismissed to represent him and follow up on the matter, and his explanation regarding technological challenges is plausible, given his age. In view of the foregoing, the court holds that the application to set the ex-parte judgment aside is merited. However, the matter should be concluded expeditiously to ensure the timely administration of justice. 34.Flowing from the foregoing, the court allows the application as prayed and gives the following orders: -a.Both Claimant/Applicant and Respondent comply with Rule 40 of the Employment and Labour Relations Court (Procedure) Rules 2024 within 14 days.b.The court will mention the case on 2nd July 2026 to give a hearing date. 35.Costs of the application be in the cause.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 12TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.