https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/373

Gekone v Nine One One Group Ltd (Employment and Labour Relations Cause E235 of 2023) [2026] KEMC 373 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEMC 373 (KLR) Republic of Kenya In the Nakuru Law Courts Employment and Labour Relations Cause E235 of 2023 PA Ndege, SPM July 29, 2026 Between Kepha Omoro Gekone Applicant and Nine One One Group Ltd Respondent Ruling 1.Before me is a Notice of Motion dated 30/01/2025 filed under section 1A, 2A and 3A of the Civil Procedure Act, Order 51 and Order 12 Rule 7 of the Civil Procedure Rules 2010 seeking the following:a.That the Honorable Court be pleased to reinstate and/or revive the Applicants suit.b.That the Honorable Court be pleased to allow the Applicant to prosecute the suit upon granting prayer (a) above.c.That the costs of the application be in the cause. 2.The application is premised on the grounds on the face of it and the averments in the supporting affidavit sworn by Kepha Oromo. The Applicant seeks for orders in the nature of reinstatement and/or reviving of a suit. Claimant/Applicants Submissions 3.The Claimant/Applicant also made submissions in writing dated 25/09/2025 on the issue of merit. In their submissions they argued that their application was merited relying on Order 12 Rule 7 that where a suit has been dismissed for non-appearance the plaintiff may apply to the Court for the restoration of the suit, provided that such application is made within a reasonable time after the dismissal. 4.The Applicant also relied on precedents such as Shah vs Mbogo and Another (1967) EA 116 as they claimed that the claimants former Advocate was indisposed hence the non-attendance which is an excusable mistake. They defended the argument made by Respondents on inordinate delay as they filed the application slightly over two months after dismissal. 5.In the submissions they argue that the Respondent has not demonstrated any prejudice it stands to suffer if the matter is reinstated. They claim that dismissal of the suit is violation of the applicants constitutional rights under Article 50(1) – right to a fair hearing,48 – access to justice and 159 (2) (d)- substantive justice over procedural technicalities Constitution of Kenya 2010. Respondent’s Submissions 6.The Respondent opposed the application by way of a Replying Affidavit dated 12/04/2025 sworn by Nelly Mulewa the Human Resource Officer and written submissions, in which they argue that the claimant’s application lacks merit and does not meet the legal threshold for the court to exercise its discretion to reinstate a suit. 7.They submit that there is inordinate delay of the application after the dismissal of the suit herein on 11/12/2024 for non-attendance and lack of sincerity from the applicants who filed the application dated 30/01/25 in March, 2025, thereby creating serious concerns of backdating. 8.The Respondent claims that the reinstatement will occasion real and substantive prejudice through the loss of key witnesses and the resultant impairment of his ability to defend the claim. If the Court grants the relief sought, the respondent submits, then it should be conditional upon the payment of throw -away costs in the sum of Kshs 50,000. Issues and Determination 9.The issue for determination herein is whether the claimant has satisfied the legal and equitable principles governing reinstatement of a suit dismissed for non-attendance. The legal threshold for saving a suit from dismissal for non-attendance is demonstration of good cause by the applicant as provided for under Rule 22(2) of the Employment and Labor Relations Court (procedure) Rules. 10.Further in the case of James Kanyiita Nderitu & Another V Mario Philotas Ghikas & Another (2017) eKLR, the Court of Appeal provided the principles for the Court to set aside its orders for judgment or dismissal. For the Court to exercise discretion to reinstate a suit, the applicant must demonstrate the following:a.)The non-attendance was not deliberate or through negligence but due to inadvertence and honest mistake.b.)The application was made without unreasonable delay.c.)The suit is meritorious and the applicant has not lost interest in prosecuting the same.d.)He stands to suffer more prejudice than the opposing party if the application is denied. 11.The claimant claims that non-attendance was due to indisposition of former counsel in which no evidence is provided thereof. The application herein was however filed promptly without undue delay and the suit has merit. The Respondent’s prejudice can however be compensated by damages. Thus, considering the findings above and in the interests of justice, I am inclined to grant reinstatement of the suit dismissed on 11/12/2024. Throw away costs in the sum of Ksh. 25, 000 to be paid upon the Respondent within 30 days from the date hereof, failure to which the dismissal orders shall stand reinstated automatically. Meanwhile, the costs of this application in cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS…29TH . DAY OF…JULY……2026HON A.P NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Claimant’s Counsel: MutaiRespondent’s Counsel: n/aClaimant/ Applicant: n/aMutai: Let’s have the matter mn before the CM -CT 1 for reallocation/ further directions.CT: Mn. Before CT 1 on 20/08/26 for reallocation/ further directions. MNTI.