https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/281

Mmula v China Road & Bridge Corporation (K) Ltd (Civil Case 216 of 2017) [2026] KEMC 281 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEMC 281 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 216 of 2017 YA Shikanda, SPM June 30, 2026 Between Laban Liru Mmula Plaintiff and China Road & Bridge Corporation (K) Ltd Defendant Ruling The Application 1.The Plaintiff herein moved the court by way of a Notice of motion pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 rule 1 and Order 17 rule 2 of the Civil Procedure Rules. The application is dated 4/8/2025 and was filed on 28/8/2025. The application seeks the following orders: 1.That the court orders dismissing this suit on 30/9/2022 for want of prosecution be reviewed and set aside; 2.The costs of the application do abide the costs of the suit. 2.The application is supported by the affidavit of the plaintiff/applicant and is premised on the following general grounds:a.The matter relates to a work injury benefit claim which occurred on 17/5/2016;b.All work injury matters including this matter were stood over up to April, 2023 when the Honourable Chief Justice gave directions;c.The applicant only learnt of the dismissal on 29/7/2025 when the court file was traced after being misplaced;d.The plaintiff was not served with a notice to show cause why the suit should not be dismissed. 3.In the affidavit in support of the application, the applicant reiterated the grounds appearing on the face of the application. The Response 4.The defendant opposed the application by filing a Replying affidavit sworn by counsel for the defendant/respondent. Counsel deposed that the Practice directions by the Honourable Chief Justice do not affect this matter as it was not pending on 28/4/2023 when the directions were issued. That reinstatement of the suit will cause great injustice and prejudice to the defendant and its insurer. Counsel deposed that the dismissal was done three years ago and that they raised their fee note which was paid and they closed their file. That the client-Advocate relationship ceased upon payment and closure of their file. 5.Counsel further deposed that if the application is allowed, the defendant will have to issue fresh instructions, pay fresh fees and locate long lost witnesses and documents in support of their case. That the project was completed and many staff including managers were let go. The defence argued that the plaintiff had not given a good reason as to why he did not attend court in time after the matter was dismissed. That the application has been made with undue delay thus occasioning prejudice to the defendant. Main Issues for Determination 6.Having considered the application and the response by the defendant, I find that the main issue for determination is whether there are sufficient grounds for the court to reinstate the suit. The Plaintiff's/applicant’s Submissions 7.The applicant filed written submissions. He submitted that suits involving work injury were stalled following a dispute as to whether the court had jurisdiction to hear and determine such disputes. That the plaintiff was not aware that the suit had been dismissed and that the court file had been missing until 29/7/2025 when it was traced. It was not until 29/7/2025 when the plaintiff became aware of the dismissal and that is why he filed the application. The plaintiff maintained that he was not served with a notice to show cause why the suit should not be dismissed. That this suit had been filed before the Supreme Court judgment and is therefore properly before court. The plaintiff argued that the suit was not heard on merit and for the ends of justice, it is proper that the suit be reinstated. Submissions by the Defendant/Respondent 8.The defendant/respondent did not file any submissions. Analysis and DeterminationThe legal provisions 9.Section 1A of the Civil Procedure Act provides as follows:(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court".Section 1B provides as thus:(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a) the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology".Section 3A provides:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". Analysis 10.I have considered the application, the response by the defendant as well as the applicant’s submissions. I have perused the record. There is a copy of a notice to show cause dated 30/8/2022 issued under Order 17 rule 2 of the Civil Procedure Rules. The notice required the plaintiff to show cause why the suit should not be dismissed for want of prosecution. The plaintiff argues that he was not served. There is no evidence to show that the plaintiff was served with the notice, although the evidence on record indicates that the defendant was served with the notice. In the circumstances, I have no reason to doubt that the plaintiff was not aware of the proceedings of 30/9/2022 that led to the dismissal of the suit. 11.Furthermore, despite the notice to show cause being on the issue of want of prosecution, the court, on 30/9/2022 did not dismiss the suit for want of prosecution but for want of jurisdiction. The proceedings of 30/9/2022 were at variance with the notice that was issued for such proceedings. I am aware of the history of claims based on work injuries under the Work Injury Benefits Act. The matter was in court on 5/2/2019 and the same was stayed indefinitely by the court “awaiting further directions.” I am also aware that there was pending litigation before the superior court. The final decision was made by the Supreme Court on 3/12/2019 in the case of Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR). 12.After the Supreme Court rendered its decision, there was still uncertainty with respect to matters which had been filed after the enactment of the Work Injury Benefits Act and after the High Court had declared provisions of the Work Injury Benefits Act unconstitutional on 4/3/2009 and before the Court of Appeal rendered its decision on 17/11/2017. The Court of Appeal and the Supreme Court pointed out the issue of legitimate expectation. It is for this reason that the Hon Chief Justice gave practice directions vide gazette notice number 5476 dated 24/4/2023. 13.The plaintiff alleged that the court file could not be traced for a long time. The directions by the Hon Chief Justice stipulate that all claims for compensation for work related injuries and diseases filed in the Magistrates court after the commencement of WIBA and before the Supreme Court decision should continue before the court. Given the circumstances, the plaintiff could not be expected to move the court owing to the uncertainty and before the directions were given. The application was filed promptly after the plaintiff became aware of the dismissal. The issues being raised by counsel for the defendant are between them and their client and are not matters to be considered in such an application. In any event, the inconvenience caused can be remedied by way of costs. Disposition 14.In view of the foregoing, I find that the application is meritorious. I proceed to allow it in the following terms:a.The order made on 30/9/2022 dismissing the suit for want of jurisdiction is hereby set aside;b.The suit is hereby reinstated for hearing;c.Costs of the application are awarded to the defendant. The same are hereby assessed at Ksh. 8,000/=;d.Owing to the age of the suit, the court shall give directions as to the hearing immediately upon delivery of this ruling. DATED, SIGNED AND DELIVERED VIA CTS THIS 30TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.