Mutunga v Essajee Amijee Ltd (Civil Suit 2643 of 2013) [2026] KEMC 852 (KLR) (2 September 2026) (Ruling)

Mutunga v Essajee Amijee Ltd (Civil Suit 2643 of 2013) [2026] KEMC 852 (KLR) (2 September 2026) (Ruling) Neutral citation: [2026] KEMC 852 (KLR) Republic of Kenya In the Milimani Commercial Chief Magistrate's Courts Civil Suit 2643 of 2013 LA Mumassabba, PM September 2, 2026 Between Stephen Mutunga Plaintiff and Essajee Amijee Limited Defendant Ruling Introduction 1.Before the Court is the Plaintiff/Applicant’s Notice of Motion dated 11th December 2025. The application is expressed to be brought under Order 12 Rule 7 and Order 51 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Articles 48 and 159 of the Constitution of Kenya, and all other enabling provisions of the law. 2.The Plaintiff/Applicant seeks the following substantive orders:a.That the Orders made on 17th July 2025, dismissing the Notice of Motion dated 11th June 2025 for non-attendance, together with all consequential orders, be set aside;b.That the Plaintiff’s suit be reinstated; andc.That the costs of the Application be provided for. 3.The Application is supported by the Affidavit of Osike D. Ombasa, Advocate, sworn in support thereof. The Defendant/Respondent opposed the Application through a Replying Affidavit sworn by Athman Wambua, the Human Resource Manager of the Defendant/Respondent. Background 4.The matter first came before this Court on 6th May 2026, when both parties were absent. The Court consequently fixed the matter for mention on 3rd June 2026. 5.On 3rd June 2026, the Plaintiff/Applicant was absent while the Defendant/Respondent was represented. Counsel for the Defendant/Respondent sought thirty days to familiarise themselves with the matter. The request was allowed, and the matter was fixed for mention on 8th July 2026. 6.On 8th July 2026, both parties appeared before the Court. The Court directed that the application be disposed of by way of written submissions and granted the parties fourteen days each to file and exchange their submissions. The matter was thereafter fixed for mention on 12th August 2026 to confirm compliance and take directions on a ruling date. 7.On 12th August 2026, counsel for the Plaintiff/Applicant sought further time on the ground that he was unwell. In the interest of justice, the Court allowed the request and directed the Plaintiff/Applicant to file and serve his submissions by 19th August 2026. The Plaintiff/Applicant did not comply with that direction. The submissions were not filed, and no further explanation was subsequently offered to the Court. 8.The Court has nevertheless considered the application, the Supporting Affidavit, the Replying Affidavit, the Defendant/Respondent’s submissions and the applicable law. The Plaintiff/Applicant’s failure to file submissions is, however, relevant in considering the overall conduct of the litigation and the Applicant’s diligence in prosecuting the Application. The Applicant’s Case 9.The Applicant’s case is that the suit was filed on 6th May 2013 seeking compensation for injuries allegedly sustained in the course of employment. It is contended that the matter was not actively prosecuted because industrial matters were awaiting the determination of jurisdictional issues by the Supreme Court. 10.The Applicant states that during that period, the suit was dismissed without the knowledge of his Advocates and without a Notice to Show Cause being served upon them. Upon learning of the dismissal, the Applicant filed an application dated 5th September 2023 seeking reinstatement of the suit. 11.The Applicant further explains that the hearing date of the Application for reinstatement was allegedly misdiarised by his clerk. According to the Applicant, the clerk diarised the matter for 12th June 2025 instead of 10th December 2024. When counsel attended Court on 12th June 2025, the matter was not listed in the cause list and the court file was unavailable. Upon subsequently perusing the file, counsel discovered that the application had already been dismissed. 12.This prompted the Applicant to file the Notice of Motion dated 11th June, 2025 seeking to revive the earlier application. However, when that application came up for hearing on 17th July 2025, counsel allegedly experienced network challenges and was unable to attend virtually. The Application was consequently dismissed for non-attendance. 13.The Applicant contends that the defaults were attributable to the mistakes and circumstances affecting his Advocates and that he should not be punished for his Advocate’s errors. He therefore urges the Court to exercise its discretion, set aside the orders of 17th July 2025 and reinstate the suit for hearing and determination on its merits. The Defendant/Respondent’s Submissions Dated 28th July ,2026 14.The Defendant/Respondent opposes the Application and submits that the present Application represents yet another attempt by the Applicant to revive a matter which has been characterised by prolonged inactivity, repeated non-attendance and persistent delay. 15.The Respondent submits that the suit was filed in 2013 and was dismissed for want of prosecution in 2018, after approximately five years of inactivity. The Applicant subsequently filed an application dated 5th September 2023 seeking reinstatement of the suit, but the application was dismissed for non-attendance in December 2024. 16.Thereafter, the Applicant filed a further Application dated 11th June 2025, which was similarly dismissed for non-attendance on 17th July 2025. The Respondent therefore submits that the present application constitutes the Applicant’s third attempt to revive the suit and demonstrates a repeated pattern of failure to diligently prosecute the matter. 17.The Respondent further submits that the Applicant has not provided a plausible or satisfactory explanation for the repeated non-attendance. In particular, it is submitted that the allegation that the hearing date was misdiarised by a clerk is unsupported by an Affidavit from the said clerk or any documentary evidence. The Respondent also contends that the alleged network challenges on 17th July 2025 were not supported by evidence demonstrating the nature and extent of the alleged difficulty. 18.The Respondent further submits that the alleged general stand-over of WIBA and industrial matters does not satisfactorily explain the period of inactivity between 2013 and 2018. It is argued that no evidence was placed before the Court to demonstrate that this particular suit had been stayed or that the alleged stand-over prevented the Applicant from taking steps to prosecute the matter. 19.The Respondent contends that repeated Applications seeking substantially the same relief amount to an abuse of the Court process. Counsel relies on Bilha Ngonyo Isaac v Kembu Farm Ltd & Another, Utalii Transport Company Limited & 3 others v NIC Bank Limited & another, and Shah v Mbogo in support of the principles governing the exercise of the Court’s discretion where a party seeks relief from the consequences of non-attendance or delay. 20.It is further submitted that although the Court has discretion to set aside an order of dismissal, such discretion must be exercised judicially and is not intended to assist a party who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 21.The Respondent submits that the Applicant has failed to demonstrate sufficient cause for the Court to exercise its discretion in his favour. Counsel urges the Court to consider the entire history of the matter and not merely the immediate explanation offered for the non-attendance on 17th July 2025. 22.On the question of the mistake of counsel, the Respondent submits that the oft-cited principle that the mistake of an Advocate should not be visited upon an innocent litigant is not of blanket application. The Court must examine the entire conduct of the litigant and determine whether the alleged mistake is a genuine and isolated occurrence or part of a continuing pattern of inattention to the litigation. The Court of Appeal has similarly observed that the principle is not absolute and that the conduct of the party seeking relief must be examined. 23.The Respondent further submits that litigation must, at some point, come to an end. The Court is urged to find that the Applicant has repeatedly been afforded opportunities to prosecute the matter but has failed to do so with the diligence expected of a litigant seeking the discretionary intervention of the Court. 24.On prejudice, the Respondent submits that the claim arises from an alleged work injury said to have occurred in 2011. With the passage of approximately fifteen years, the Respondent argues that its ability to defend the claim has been substantially prejudiced. Witnesses may no longer be available, memories may have faded and relevant documents may have been lost. 25.The Respondent therefore submits that the continued revival of the matter would occasion substantial prejudice and would be inconsistent with the overriding objective of the Civil Procedure Act and the requirement that disputes be determined justly and expeditiously. The Court is urged to dismiss the application with costs. Analysis and Determination 26.I have considered the Application, the Supporting and Replying Affidavits, the Defendant/Respondent’s submissions, the record of the proceedings and the applicable law. The Plaintiff/Applicant did not file submissions despite having been granted an opportunity and additional time to do so. 27.In my view, the central issue for determination is: Whether the Applicant has Demonstrated Sufficient Cause to Warrant the Setting Aside of the Orders mMde on 17th July 2025 and the Reinstatement of the Suit. The Applicable Law 28.The Application is premised, among other provisions, on Order 12 Rule 7 of the Civil Procedure Rules, which provides:“Where under this Order Judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 29.The power donated by the provision is discretionary. However, the discretion must be exercised judicially and upon established principles. 30.In Shah v Mbogo [1967] EA 116, the Court stated that the discretion to set aside an ex parte judgment or order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but is not intended to assist a person who has deliberately sought to obstruct or delay the course of justice. 31.Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court observed that there are no limits or restrictions on the discretion of the Court to set aside an ex parte judgment, provided the discretion is exercised judicially and upon such terms as may be just. 32.In determining whether to exercise its discretion, the Court must consider the explanation for the failure to attend, the length and nature of the delay, the conduct of the Applicant, the prejudice likely to be suffered by the parties and the overall interests of justice. Whether Sufficient Cause Has Been Shown 33.The Applicant explains the non-attendance leading to the dismissal of the application dated 5th September 2023 on the basis that the hearing date was misdiarised by a clerk. The subsequent non-attendance on 17th July 2025 is attributed to network challenges experienced by counsel. 34.Mistakes by counsel or their staff may, in appropriate circumstances, constitute sufficient reason for the Court to exercise its discretion in favour of an Applicant. However, each case must be considered on its own facts. The Court must distinguish between an isolated, genuine and excusable mistake and a continuing pattern of inattention to litigation. 35.In the present matter, the history of the proceedings cannot be ignored. The suit was filed in 2013 and was dismissed for want of prosecution in 2018. The Applicant thereafter filed an application dated 5th September 2023 seeking reinstatement, which was dismissed for non-attendance. A further application dated 11th June 2025 was also dismissed for non-attendance on 17th July 2025. The Applicant now seeks to set aside the latter dismissal and ultimately revive the suit. 36.The explanations advanced must therefore be assessed against this entire history. The explanation relating to the misdiarising of the hearing date was not supported by an affidavit from the clerk who allegedly made the mistake. Likewise, the allegation of network challenges was not supported by evidence demonstrating the nature or extent of the difficulty encountered. 37.While the Court is mindful that procedural mistakes may occur, a litigant who has repeatedly encountered dismissals for non-attendance bears a greater responsibility to place before the Court cogent material demonstrating that the latest default was genuinely beyond his control. The Applicant’s Conduct and Failure to Comply with Court Directions 38.The conduct of the Applicant before this Court is particularly relevant. On 8th July 2026, both parties appeared, and the Court directed that the application be disposed of by way of written submissions. The parties were granted fourteen days each to file and exchange their submissions. 39.When the matter came up on 12th August 2026, counsel for the Plaintiff/Applicant sought additional time on account of illness. The Court, in the interest of justice, granted the Plaintiff/Applicant further time and directed that submissions be filed and served by 19th August 2026. 40.Despite this express and specific direction, the Plaintiff/Applicant did not file submissions. No further explanation was offered to the Court. 41.It is a well-established principle that, in appropriate circumstances, the mistake of counsel should not be visited upon an innocent litigant. However, that principle is not absolute and cannot be invoked mechanically in every case. The Court must consider the entire history and conduct of the proceedings. 42.In the present case, the Plaintiff/Applicant was afforded an opportunity to prosecute the Application. When counsel sought further indulgence on the ground of illness, the Court accommodated him and granted additional time. That indulgence was not utilised. 43.The failure to comply with the Court's direction must therefore be considered together with the previous instances of non-attendance and delay. Litigation must, at some point, come to an end. The discretion of the Court exists to prevent injustice and hardship; it is not intended to permit a litigant to indefinitely prolong proceedings where repeated opportunities have been afforded but not utilised. 44.I am therefore of the view that the conduct of counsel, viewed against the history of this matter, demonstrates a continuing lack of diligence in prosecuting the application. The Plaintiff/Applicant was afforded a clear opportunity to be heard and was granted further time upon counsel’s request, but failed to utilise that opportunity. 45.The failure to file submissions does not, standing alone, determine the application. However, it is a relevant consideration in assessing whether the Applicant has demonstrated consistent diligence and sufficient cause for the exercise of the Court’s discretion. Whether the Delay and Conduct of the Applicant Justify the Exercise of Discretion 46.In Ivita v Kyumbu [1984] KLR 441, the Court held that the test in applications involving delay is whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless be done despite the delay. The Court must also consider the prejudice occasioned to the parties and whether a fair trial remains possible. 47.The principles applicable to delay were also considered in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR, where the Court emphasised that the test is not merely the passage of time but the nature of the delay, the explanation offered, the conduct of the parties and the overall interests of justice. 48.The Applicant relies on the alleged stand-over of WIBA and industrial matters to explain the earlier inactivity. However, no specific evidence was placed before the Court to demonstrate that this particular suit had been stayed or that the alleged stand-over prevented the Applicant from taking steps to prosecute the matter throughout the period in question. 49.More importantly, even after the Applicant commenced efforts to revive the suit, the applications filed for that purpose were repeatedly dismissed for non-attendance. The Court is therefore not dealing with a single isolated procedural lapse but with a succession of defaults over a considerable period. 50.The procedural history before this Court further reinforces that conclusion. Even after both parties appeared and the Court issued clear directions for the filing of submissions, the Plaintiff/Applicant failed to comply. Further time was granted upon counsel’s request, but the Plaintiff/Applicant still did not file submissions. 51.In my view, the Applicant has not demonstrated a consistent intention to prosecute the matter diligently. The cumulative effect of the prolonged delay, repeated non-attendance, failure to comply with Court directions and the absence of satisfactory explanations points to a pattern of indolence rather than a single inadvertent or excusable mistake. Whether the Respondent will Suffer Prejudice 52.The Court must also consider the prejudice likely to be suffered by the Respondent if the matter is revived. The Respondent states that the claim arises from an alleged work injury said to have occurred in 2011 and that, with the passage of approximately fifteen years, witnesses may no longer be available, memories may have faded and documents may have been lost. 53.These concerns are substantial. With the passage of such a long period, the possibility of prejudice to the Respondent in preparing and presenting its defence becomes real. 54.The right to be heard is a fundamental principle of justice. However, justice is not a one-sided concept. The Court must balance the Applicant’s right to have the dispute heard against the Respondent’s right to finality in litigation and protection from the prejudice caused by prolonged and unexplained delay. 55.Article 159 of the Constitution requires the Court to administer justice without undue regard to procedural technicalities. That constitutional command does not, however, excuse persistent non-compliance with Court directions, repeated non-attendance or prolonged failure to prosecute proceedings. The overriding objective equally requires the just, expeditious, proportionate and affordable resolution of disputes. 56.Having considered the entire history of the matter, I am not persuaded that the Applicant has established sufficient cause for the exercise of the Court’s discretion under Order 12 Rule 7 of the Civil Procedure Rules. 57.The cumulative effect of the prolonged delay, repeated non-attendance, insufficient explanation for the defaults, failure to comply with the directions issued by this Court and the substantial prejudice likely to be suffered by the Respondent militates against granting the orders sought. Conclusion 58.The Court’s discretion to set aside a dismissal order is intended to prevent injustice arising from genuine accident, inadvertence or excusable mistake. It is not intended to permit the indefinite revival of proceedings where a litigant has repeatedly failed to take the necessary steps to prosecute the matter. 59.While the Court is mindful of the principle that the mistakes of counsel should not ordinarily be visited upon an innocent litigant, the circumstances of this case go beyond a single mistake or isolated procedural lapse. The entire history of the proceedings reveals repeated defaults and a failure to take advantage of opportunities afforded by the Court. 60.The Plaintiff/Applicant was specifically granted additional time on 12th August 2026, upon counsel’s own request, to file submissions by 19th August 2026. The direction was not complied with, and no explanation was offered for the non-compliance. 61.This conduct, when considered together with the history of the matter, demonstrates a lack of diligence in prosecuting the application. The Plaintiff/Applicant has not placed before the Court sufficient material to justify the exercise of the Court’s discretion in his favour. 62.Litigation must always come to an end. The interests of justice do not permit a matter to remain indefinitely in the judicial process where a party has repeatedly failed to take the necessary steps to prosecute it,despite being afforded opportunities and the indulgence of the Court. 63.In the circumstances of this case, I find that the Applicant has not demonstrated sufficient cause to warrant the setting aside of the orders made on 17th July 2025. Disposition 1.Consequently, the Notice of Motion dated 11th December, 2025 is hereby dismissed. 2.The Defendant/Respondent shall have the costs of the Application. 3.The file is hereby marked as closed 30 Days Right of Appeal RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 2ND DAY OF SEPTEMBER ,2026__________________L.A. MUMASSABBAPRINCIPAL MAGISTRATEIn the presence of :M/s Otokoma Holding Brief for Mr.Onyony for the DefendantPlaintiff: AbsentCourt Assistant: Phoebe.