https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2123

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 23rd July 2026) **CASE NO. 915 OF 2018** **DOMINIC MATOLO KIOKO……………………………….CLAIMANT** **-VERSUS-** **DEL MONTE KENYA LIMITED….….…………………RESPONDENT** **RULING** **Introduction** 1. This suit was dismissed on 25th July 2023 for want of prosecution and by a Notice of Motion dated 28th August 2025, the Claimant sought the following orders: - 2. ***That, this court be pleased to set aside the order made on 25th July 2023 dismissing this suit.*** 3. ***That, this court be pleased to reinstate this suit for hearing.*** 4. ***That, the costs of this application be provided for.*** 5. The Motion is supported by the Claimant’s Affidavit sworn on 28th August 2025 and it is opposed by a Replying Affidavit sworn on 18th November 2025 by Muendo Muasa Uvyu, the Respondent's Advocate on record. The Motion was disposed of by way of written submissions. The Claimant's Submissions are dated 2nd December 2025 while the Respondent's Submissions are dated 10th December 2025. **Facts** 1. The Claimant instituted this suit on 11th June 2018 alleging that he was unlawfully dismissed from employment by the Respondent. The Claimant also alleged that he had sustained injuries during the course of his employment and filed a separate suit being Thika **MCC No. 430 of 2017** seeking damages for the said injuries. 2. The Respondent filed a Statement of Response to the suit on 7th August 2018 and on 20th September 2018, whereas the Claimant filed a Reply to the Statement of Response bringing the pleadings to a close. 3. By a letter dated 30th October 2018, the Claimant's advocates invited the respondent’s advocates to meet at the Court Registry on 14th December 2018 to fix a hearing date for the suit. The court record is silent on what happened on 18th December 2018 as no date for hearing was taken. In any case the invitation was premature as pre-trial conference had not been held. 4. Subsequently, the Claimant took no further steps towards prosecuting the suit until the suit was dismissed for want of prosecution on 25th July 2023. Before the dismissal the court, on its own motion, served the parties with Notice to Show Cause on 14th June 2023 inviting them to show cause why the suit should not be dismissed for want of prosecution. 5. The Claimant contends that the dismissal was made without his or his Advocate’s knowledge as the advocate changed his official email address from kahuthu@hotmail.com to kahuthu3@gmail.com in 2023. 6. He further contends that he only discovered the dismissal of the suit in July 2025 after making several attempts to trace the court file, so as to take a hearing date. He then filed the instant application on 29th August 2025, more than two years after the dismissal. 7. He contends that the was diligent and tried to in vain to fix a date for hearing due to a pending decision from the Court of Appeal being ***West* Kenya Sugar Co. Ltd v. Tito Lucheli Tangale - Kisumu Appeal No. 4 of 2019**, which had a bearing on WIBA matters. The decision, which is marked “MK-1” was by this court and not the Court of Appeal and it was rendered on 18th August 2020. The written judgment was circulated shortly thereafter and widely reported by 2020-2021. 8. The Claimant further contends that he was keen on prosecuting the suit and had on 21st July 2023, filed a further Witness Statement dated 21st July 2023 and paid for the same. 9. The Respondent contends that the Claimant took no action between 2018 and July 2023 to prosecute the suit and that the delay of over two years post-dismissal is inordinate and inexcusable. The Respondent further contends that it will suffer grave prejudice if the suit is reinstated, as key witnesses have since resigned, retired or relocated and material documents have been archived or lawfully destroyed. 10. It further contends that the Appeal case cited as the reason for the delay in prosecuting the suit was delivered way back on 18th August 2020 and widely circulated and reported in 2020-2021. It maintained that the Claimant took no steps to prosecute his suit after serving the letter dated 30th October 2018 inviting it to fix hearing date. **Analysis** 1. Having considered the Notice of Motion, the rival Affidavits and written submissions and it is evident that suit was dismissed for want of prosecution by the court on its own motion. The main issues for determination are: - 2. Whether the Claimant’s motion meets the legal threshold for reinstatement of a suit dismissed for want of prosecution. 3. Whether the application ought to be allowed as prayed. 4. **Legal threshold for reinstatement of a dismissed suit.** 5. The applicable law to the instant motion is the repealed ELRC procedure Rules 2016. Rule 15 provided that:- ***“The parties to a suit shall, within fourteen days after the close of pleadings or such other shorter period as the Court may order, move the Court to hold a scheduling conference …”*** 1. Rule 16 then provided that: - ***“(1) In any suit in which no application has been made in accordance with Rule 15 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 cause is shown to its satisfaction, may dismiss the suit.”*** 1. In this case, the suit was filed on 11th June 2018 and the court was not moved for a scheduling conference, commonly referred to as pre-trial conference within one year from the date filing. Instead the claimant wrote a letter dated 30th October 2018 to the respondent, inviting counsel to fix the suit for hearing. The letter was received by the respondent’s counsel on 3rd December 2018 and by the court on 5th December 2018. 2. As already noted above, the said letter was premature since the court had not been moved for pre-trial conference as required under Rule 15 above. It is also evident from the court record that no date was fixed on 14th December 2018 and the matter went into a limbo until 14th June 2023 when the Court on its own motion issued notices to the parties to attend court on 25th July 2023 to show cause why the suit should not be dismissed for want prosecution. 3. Neither the Claimant nor the Respondent attended court on 25th July 2023 as notified and the suit was dismissed for want of prosecution. 4. It follows that, for the court to set aside the said decision and reinstate the suit, the Claimant must show that he was prevented from prosecuting his case by a good cause. He must also move the court without inordinate delay, and demonstrate that the opposite party will not suffer prejudice that cannot be remedied by costs. 5. The Claimant’s case is that the suit was dismissed without his knowledge or that of his advocate as his advocate's email address had been changed. He further contends that the suit had been held in abeyance from 2018 to 2023 pending the outcome of a WIBA Appeal in **West Kenya Sugar Co. Ltd v. Tito Lucheli Tangale (Kisumu Civil Appeal No. 4 of 2019)**. 6. The Respondent, on the other hand, contends that the decision in **West Kenya Sugar Co. Ltd v. Tito Lucheli Tangale** was delivered on 18th August 2020, and it was circulated and widely reported from 2020-2021. The Respondent submits that the Claimant took no steps to prosecute the suit between 2020 and July 2023. 7. The Respondent further contends that the suit before this Court is an employment matter that has no bearing whatsoever on work injury case as those are two completely independent jurisdictions. It averred that, the Claimant had indeed filed a separate suit seeking damages for the work injuries being Thika **MCC No. 430 of 2017**. 8. Having carefully considered the facts of the case, I find that the claimant has not demonstrated any good cause for the failure to prosecute or take steps towards prosecuting his case from 11th June 2018 to 25th July 2023 when it was dismissed for want of prosecution. The Claimant did not even move the court for a pre-trial conference for over five years. 9. I further find the allegation that the suit was kept in abeyance pending outcome of an appeal dealing with jurisdiction of the court in work injury claims to be irrational since the outcome of the appeal was not relevant to this suit. There is also no evidence provided to show that a stay order or directive was issued by the court to hold this specific suit in abeyance pending the appeal. 10. As regards whether the application was filed timeously, it is not in dispute that the application was made two years from the date when the suit was dismissed by the court. I would agree with the respondent that a delay of two years from the date of the impugned decision is indeed inordinate. 11. In **Ivita v Kyumbu [1984] KLR 441**, the court held that the delay in making application like in the instant case, must be explained to the satisfaction of the court, and where no reasonable explanation is given, the court will not exercise its discretion in favour of the applicant. 12. In **Shah v. Mbogo and Another [1967] EA 116** the Court of Appeal of East Africa held that:- ***“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”*** 1. Having careful read the applicant’s affidavit in support of the motion herein, it is clear that the applicant did not explain why he delayed for two years before filing the instant motion. He did not produce any evidence, like, letters written to the court for assistance if the file was missing. 2. The Claimant also cites a change in his Advocate's email from kahuthu@hotmail.com to kahuthu3@gmail.com in 2023 as a reason for missing notices. However, the said explanation is not satisfactory since the court served the claimant through the known email address. The service was done on 14th June 2023 and the applicant has not tendered any evidence to prove that the change of email address was done before then. Besides, if at all the counsel changed his address, it was upon him to notify the court and the opposite party of the change of address to facilitate proper service of court documents. 3. The last issue to consider is whether reinstatement will prejudice the opposite party. The Respondent contends that reinstatement would cause grave and irreparable harm, as key witnesses from 2018-2023 have resigned, retired, or relocated, making their recall impractical and unreliable due to faded memories. Material documents have been archived or lawfully destroyed in accordance with statutory retention periods under relevant laws, such as the Employment Act and data protection regulations. 4. The Respondent further contends that it had a legitimate expectation of finality post-dismissal in 2023, having closed its file on the matter. Reviving a stale claim now would force the Respondent to defend against events from over a decade ago without adequate evidence. 5. The issue of balancing of prejudices between the parties, in my view would only arise where the applicant has successfully met the key factors for reinstating a dismissed suit, namely, demonstrated sufficient cause warranting reinstatement and that the application was made without inordinate delay. As noted above, the Applicant has failed to establish the said twin factors. 6. The foregoing notwithstanding, I am persuaded by the Respondent's submissions on this issue. The suit was filed in 2018 and the events giving rise to the claim occurred even earlier. The Claimant's indolence has resulted in a situation where the Respondent may no longer have access to key witnesses and documents. Therefore, I find that reinstatement of the would occasion prejudice to the respondent that cannot not be remedied by costs. 7. I fully aware that Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to technicalities but that provision cannot be invoked to resurrect a claim that has been abandoned for years without any sufficient cause. The court is also bound to uphold the well established principle that equity aids the vigilant, not the indolent. 8. Having considered the justice of the matter before the court, I find that the application ought to be declined for want of merits. Granting this application would set a dangerous precedent and encourage litigants to slumber on their rights. **Conclusion** 1. I have found that the Claimant has failed to prove that he was prevented from prosecuting or taking positive steps towards prosecuting the suit by sufficient cause. I have further found that the application for reinstatement was made after inordinate delay, which has not been explained to the satisfaction of the court. Finally, I have found that reinstating the suit would occasion on the Respondent grave prejudice that cannot be remedied by award of costs. Consequently, the Notice of Motion dated 28th August 2025 stands dismissed with costs to the Respondent. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 23RD DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Kahuthu for Applicant Ngure for Respondent