https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1511

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E040 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **HADSON GALIVWA MGALO ………………...…….…..… APPELLANT** **VERSUS** **SHIV CONSTRUCTION CO. LTD ……………..………. RESPONDENT** *(Being an appeal against the ruling of the Hon. Cherono M. Kesse (PM) dated 17th April 2025 in Eldoret Chief Magistrates Court, Civil Case No. 400 of 2018 Hadson Galivwa Mgalo**v**Shiv Construction Co. Ltd)* **JUDGMENT** 1. The Appellant instituted the suit against the Respondents before the trial court vide a Plaint dated 12th April 2018 seeking compensation for injuries allegedly sustained in the course of his employment while working for the Respondent. Upon being served, the 1st Respondent entered appearance and filed a Statement of Defence dated 24th May 2018 denying the Appellant’s claim in its entirety. 2. The matter 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 and his advocate had demonstrated inexcusable laxity which should not be tolerated by the court. It is against that ruling that the present appeal has been lodged. 5. In the Memorandum of Appeal dated 12th May 2025, the Appellant sets out the following grounds of appeal: 6. 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. 7. 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. 8. 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. 9. 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. 10. 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, 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. 11. 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. 12. 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 2010 13. 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. 14. 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. 15. 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; 16. Most of WIBA matters had been taken to the archives and could not be traced from the Court Registry 17. The court clerk could not accept letters that sought the availability of the court file in the absence of the court file. 18. 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. 19. 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 28thJune 2023 under protest and failed to appreciate the following facts and points of law: - 20. 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 12thApril 2023 had been stayed in abeyance and there was no indication that they were to proceed. 21. 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. 22. 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. 23. 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. 24. 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. 25. The Hon. Trial Magistrate failed to appreciate the fact that there was no inordinate delay as alluded to 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. 26. 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. 27. 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. 28. 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: - 29. 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. 30. 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. 31. 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. 32. 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*. 33. 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. 34. 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. 35. 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: - 36. That the application dated 24th September 2024 filed in the trial court be allowed with costs 37. 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 aside 38. That the Plaintiff/Appellant’s suit be reinstated for hearing and determination on merit. 39. 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** 1. In his submissions dated 17th February 2026, the Appellant identified the issues for determination to be: - 2. Whether there was inordinate delay on part of the Plaintiff in prosecuting his case 3. 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 4. On the first issue, the Appellant submitted that the matter came up before the trial court on 24th August 2023 when it was fixed for hearing on 5th October 2023 in the presence of all parties. That however, on 5th October 2023, the court did not sit. The Appellant submits that thereafter, the matter remained pending until 25th June 2024 when the suit was dismissed *suo motto* in the absence of the parties. 5. 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. 6. According to the Appellant, immediately after the issuance of the practice directions relating to WIBA matters on 28th April 2023, he took a hearing date on 24th August 2023 where both parties attended court and were ready to proceed, but the matter was rescheduled for hearing on 5th October 2023. 7. The Appellant aver that on 5th October 2023, the trial court did not sit and subsequent efforts to trace the court file, including correspondence addressed to the Chief Magistrate’s Court, proved unsuccessful, only for the Appellant to later discover that the suit had been dismissed for want of prosecution on 25th June 2024. 8. It is the Appellant’s submission that the period between 5th October 2023 and 25th June 2024 was barely eight months and therefore did not amount to inordinate delay. Further, the Appellant submits that upon learning of the dismissal, he immediately filed an application for reinstatement on 24th September 2024 which application was subsequently dismissed by the trial court. 9. The Appellant submits that the matter had effectively been re-activated on 24th August 2023 when the parties attended court and secured a hearing date for 5th October 2023 and that therefore the Plaintiff did not fail to attend court after the matter was reactivated and that the failure to proceed on 5th October 2023 was occasioned by the court not sitting. 10. The Appellant thus submits that the trial magistrate erred in making findings suggesting prolonged inactivity on the part of the Plaintiff whereas, following the issuance of the Chief Justice’s directions, the matter had only come up once on 24th August 2023 when it was fixed for hearing on 5th October 2023, a date on which the court did not sit. 11. On this basis, the Appellant urged the court to reinstate the suit for hearing and determination on the merits. 12. 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. 13. 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. 14. 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. 15. 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 reactivated on 24th August 2023 following the issuance of the Chief Justice’s practice directions through Kenya Gazette Notice No. 5476 of 2023 and was thereafter fixed for hearing on 5th October 2023 when the court did not sit. The Appellant therefore contended that the last active step in the matter was on 5th October 2023. 16. According to the Appellant, the period between 5th October 2023 and 25th June 2024, when the suit was dismissed for want of prosecution, was barely nine months and did not therefore satisfy the one-year period of inactivity contemplated under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010. 17. The Appellant therefore submitted that the suit was prematurely listed for dismissal and that the dismissal was unjustified in the circumstances. 18. 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. 19. 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.*** 20. 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 Respondents’ Submissions** 1. On their part, the Respondents submitted on the following issues: - 2. Whether the Trial Court erred in law and in fact by disallowing the Appellant’s application seeking to reinstate the Appellant’s suit 3. To whom costs should be awarded 4. On the first issue, the Respondents submitted that the decision whether or not to set aside dismissal orders is an exercise of Court’s discretion. That for the discretion to be exercised in favour of an Applicant the Applicant must demonstrate sufficient cause to warrant the setting aside of the orders. 5. Relying on the decision in **Wafula v Wepukhulu & 5 others (Civil suit No. 55 of 2010) [2025] KEELC 1421 (KLR) (20 March 2025)** and **Ivita v Kyumbu [1975] KEHC 4 (KLR)** the Respondent submitted that the Appellant had not shown sufficient excuse for the alleged delay. 6. Acknowledging that the suit was stayed pending determination of the suit filed at the Supreme Court seeking the court’s guidance on how WIBA matters should proceed, the Respondent submitted that the Chief Justice published **Gazette Notice No. 5476 being “Practice Directions relating to pending court claims for compensation for work related injuries and diseases instituted prior to the Supreme Court decision in Law Society of Kenya v Attorney General & another, Petition No. 4 of 2019; [2019] eKLR”** on 28th April,2023. It is submitted that parties were supposed to ensure their matters were expeditiously heard and determined. That the Appellant herein failed to move his matter and the same was dismissed. 7. It is submitted for the Respondent that from the date of the Gazette Notice to the date of dismissal of the suit on 24th September, 2024 more than one year had lapsed without the Appellant taking any action to prosecute the matter. 8. The Respondent submitted that Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 allows the court to dismiss a matter which has remained stale for more than a year. 9. On the Appellants averment that he was not served with notice to show cause the Respondent submits that Rule 43 uses the phrase *‘the court may’* which means it is not mandatory. Further, that it has been held that giving notice means that once the court listed a matter for dismissal in the Judiciary Kiosk or on its cause lists the same amounts to giving notice. The Respondent relied on the decision in Professor Mwangi kaimenyi v Hon. The Attorney General and Kenya Institute of Public Policy Research and Analysis (KIPPRA) Civil Suit no. 720 of 2009 where the court interpreted similar provision in the Civil Procedure Rules. 10. The Respondent further submits that the Appellants matter was dismissed on 25th June, 2024 while the application for reinstatement was made on 24th September, 2024 and no explanation has been given for the delay of 3 months, an indicator of indolence on the part of the Appellant that cannot be excused. 11. It is submitted that allowing reinstatement will not do justice especially to the Respondent considering that this matter was instituted in 2018. That the principles of justice mandate that litigation must come to an end. 12. The Respondent submits that there is no justification for faulting the trial court for dismissing the Appellants suit for want of prosecution. The Respondent urged this court to find that the trial court was right in dismissing the suit and find the appeal with no merit. It prayed that the appeal be dismissed with costs. 13. On the 2nd issue, the Respondent submitted that awarding of costs in an appeal is the discretion of the court. That in exercising the discretion the court is guided by the section 27 of the Civil procedure Act which provides that costs are in the discretion of the court. It urged that costs be awarded to the Respondent. **Determination** 1. 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: - 2. 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 3. Whether the Appellant established sufficient cause to warrant reinstatement of 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* 1. Dismissal of suits for want of prosecution is provided for under Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 which provides: *43. (1) In any suit in which no application has been made in accordance with rule 31 or no action has been taken by either party within one year from the date of its filing, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed and, if no reasonable cause is shown to its satisfaction, may dismiss the suit.* *(2) If reasonable cause is given to the satisfaction of the Court, it may make such orders as it thinks fit to obtain the expeditious hearing and determination of the suit.* *(3) Any party to the suit may apply for dismissal as provided in sub-rule (1).* *(4) The court may dismiss the suit for non-compliance with any direction given under this rule or rule 31.* 1. Further, Order 17 Rule 2(1) of the Civil Procedure Rules, also provides that: *[Order 17, rule 2] Notice to show cause why suit should not be dismissed.* *2. (1) In any suit in which 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 dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.* *(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.* *(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.* *(4) The court may dismiss the suit for non-compliance with any direction given under this Order.* 1. The power donated to the court under the said provision is discretionary and must therefore be exercised judiciously and in accordance with the interests of justice. 2. In determining whether or not to dismiss a suit for want of prosecution, the court is required to consider the length of delay, the explanation tendered for the delay, whether the delay is excusable, whether prejudice would be occasioned to the opposing party and whether in the circumstances of the case justice would be better served by sustaining rather than terminating the suit. 3. From the material placed before this court in the instant appeal, it is not disputed that the present suit is a WIBA claim. The court takes judicial notice that WIBA matters across the country remained in limbo for a considerable period following the High Court decision on the constitutionality of section 16 of the Act which ousts the jurisdiction of Courts to hear employment injury matters. 4. It is further common ground that the Court of Appeal overturned the High Court decision and the decision was upheld by the Supreme Court. The Chief Justice subsequently issued practice directions vide Kenya Gazette Notice No. 5476 of 2023 permitting work injury matters filed before the Supreme Court decision on 3rd December, 2019 to proceed in the courts where they had been filed. 5. The record shows that following the issuance of the said directions, the Appellant’s suit came up before the trial court on 24th August 2023, when parties attended court and the matter was fixed for hearing on 5th October 2023. It is also evident from the record that nothing transpired on the scheduled hearing date on 5th October 2023. The next substantive action on the record is on 25th June 2024, when the suit was dismissed for want of prosecution without issuing notice to show cause to the parties. 6. It is clear from the court record that the last active step taken in the matter was on 5th October 2023 when the matter was scheduled for hearing but could not proceed because the court did not sit. The period between 5th October, 2023 and 25th June 2024 when the suit was dismissed for want of prosecution, is less than one year. Consequently, the statutory period contemplated under Order 17 Rule 2 and Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 had not crystallized. 7. I therefore find merit in the Appellant’s contention that the suit was prematurely dismissed for want of prosecution. 8. The Appellant further contended that neither he nor his advocate was served with a notice to show cause prior to the dismissal of the suit. The importance of such notice cannot be gainsaid. The requirement for issuance and service of a notice to show cause is intended to accord parties an opportunity to explain any delay before the drastic sanction of dismissal is invoked. 9. The Respondent argued that the meaning of the words “*the court may*” as used in Order 17 Rule 2(1) of the Civil Procedure Rules and Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 is not mandatory. With all due respect to counsel for the Respondent, I think such interpretation misses the meaning of the provision. What the two provisions mean is that it is not mandatory for the court to dismiss a matter for want of prosecution where no action has been taken for more than one year. The words “the court may” do not relate to the notice. It relates to the discretion of the court to dismiss or not to dismiss for want of prosecution. Where the court decides to dismiss, the notice to the parties is mandatory. 10. The Respondent urged this court to uphold the decision of the trial court on the basis that the Appellant had failed to prosecute the matter diligently and had advanced unsatisfactory explanations regarding the alleged disappearance of the court file. The Respondent further argued that the Appellant had failed to demonstrate candour and had attempted to shift blame to counsel. 11. Indeed, courts have consistently held that a litigant has a duty to follow up his or her case and cannot invariably hide behind the mistakes of counsel. I am equally alive to the principle that litigation must come to an end and that prolonged and unexplained delay may occasion prejudice to the opposing party. 12. However, dismissal of a suit for want of prosecution remains a draconian remedy whose effect is to drive a litigant out of the seat of justice without a hearing on the merits. Such power must be exercised sparingly and only in deserving cases. *Whether the Appellant established sufficient cause to warrant reinstatement of the suit* 1. In the present case, I am not satisfied that the circumstances justified the dismissal of the suit. The matter had been affected by the uncertainty surrounding WIBA litigation, the last active step taken in the suit was less than one year before the dismissal and there is no clear demonstration on the record that the Appellant was accorded an opportunity to show cause prior to the dismissal. 2. The interests of justice would be better served by reinstating the suit and allowing the parties an opportunity to ventilate their respective cases rather than shutting out the Appellant from the seat of justice. 3. Accordingly, I find merit in the appeal and make the following orders: - 4. The appeal is hereby allowed. 5. The ruling and order of the trial court dated 17th April 2025 dismissing the Appellant’s application dated 24th September 2024 are hereby set aside. 6. The orders issued on 25th June 2024 dismissing the Appellant’s suit for want of prosecution are hereby vacated. 7. The Appellant’s suit before the trial court is hereby reinstated for hearing and determination on the merits. 8. Each party shall bear its own costs of the appeal. 9. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY** **ON THIS 29TH DAY OF MAY 2026** **MAUREEN ONYANGO** **JUDGE**