https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1623

Mugo v Securex Agencies (K) Ltd (Employment and Labour Relations Cause E290 of 2023) [2026] KEELRC 1623 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1623 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E290 of 2023 HS Wasilwa, J June 16, 2026 Between John Gatu Mugo Claimant and Securex Agencies (K) Limited Respondent Ruling 1.The Claimant/ Applicant filed a Notice of Motion application dated 6th February 2025 seeking orders: -1.That the Honourable Court be pleased to set aside the orders of the Court made on the 28th of January 2025, dismissing this suit for want of prosecution of the suit2.That the Honourable Court be pleased to reinstate this employment suit to the list of employment suits in this Court to allow it to proceed to full hearing.3.That the costs of this application be provided for. Claimant/Applicant’s Case 2.The Application was supported by an affidavit sworn by his advocate, Boniface Mwaura. 3.The Affiant avers that he drafted the Claimant's claim on the 23rd March 2023 and filed the same in court on the 11th April 2023 acting on instructions of the Claimant/Applicant. 4.He states that on the 17th April 2023, he received summons from court and proceeded to serve the Defendants who however delayed in filing their defence, prompting him to file a request for interlocutory judgment on the 8th June 2023. 5.He avers that the Respondents thereafter filed a Memorandum of Appearance, Memorandum of Response and a Preliminary Objection all dated 13th June 2023 raising the issue of jurisdiction with reference to Gazette Notice No. 6024 of 2018. 6.He states that he attempted to obtain a date for directions on the Preliminary Objection within the prescribed time but was unsuccessful, and that the matter was subsequently listed for a Notice to Show Cause. 7.He avers that when the matter came up on the 28th January 2025 for the Notice to Show Cause, he logged into the virtual court platform but the matter was not called out. Thereafter, he waited through the call-over and raised his hand to confirm his attendance but the matter was not recalled, and that upon checking the Case Tracking System he discovered that the matter had been dismissed. 8.He concedes that this was an oversight on his part but contends that the same ought not to be visited upon an innocent litigant who had instructed an Advocate to represent him in the recovery of terminal dues arising from termination of employment. 9.He asserts that the Applicant has a straightforward case with immense chances of success and that it is therefore fair, just and in the interest of justice that the orders sought be granted. Respondent’s Case 10.In opposition to the application, the Respondent filed a replying affidavit dated 24th February 2026, sworn by Isaiah Kimani, a Human Resource Officer of the Respondent. 11.The Respondent aver that the application is couched on non-disclosure of material facts and ought to be struck out in limine. 12.It states that it is aware that the Claimant filed suit on the 11th April 2023, and that upon being served, it duly entered appearance, filed a detailed Memorandum of Response and raised a Preliminary Objection on jurisdiction, all on the 13th June 2023. 13.Thereafter, the Claimant took no steps whatsoever to prosecute the suit or to comply with the timelines prescribed under the Employment and Labour Relations Rules, 2024, prompting the court to issue a Notice to Show Cause why the suit should not be dismissed for want of prosecution, returnable on the 28th January 2025. 14.It further states that by virtue of the e-filing system, the matter was mapped onto the Claimant's Advocates' calendar for the said date, and that the court record confirms that the Claimant's Advocates were duly served with the Notice to Show Cause letter. 15.The Respondent contends that when the matter came up for the Notice to Show Cause before Hon. Lady Justice Agnes M. K. Nzei on the 28th January 2025, the Claimant and his Counsel failed to attend court and failed to offer any explanation, and the matter was rightly dismissed for want of prosecution. 16.The Respondent avers that the Claimant only moved to file the present application the 5th August 2025, a staggering eight months after the dismissal, and that this delay is inordinate, unexplained and inexcusable. 17.It is the Respondent's case that the prayers sought are untenable since: the averment that the Claimant's Advocates logged into the virtual platform but did not hear the matter called out is a bare allegation unsupported by any evidence; the Claimant has supplied no CTS logs, screenshots, attendance records or demonstrated any vigilance placed before the court. Further, the Claimant has not demonstrated a single step taken to have the matter fixed for mention at any point between the 11th April 2023 and 28th January 2025, and that the matter had in any event stood dismissed by operation of law by the 10th April 2024 for want of prosecution. 18.The Respondent further contends that the Claimant has approached this court with unclean hands by failing to disclose that he took no action for eight months following the dismissal, a period wholly inconsistent with a litigant desirous of prosecuting his case, and that no steps were taken to fix the reinstatement application for hearing until the court moved on its own motion. 19.It asserts that reinstating the matter in these circumstances would amount to injustice and prejudice to the Respondent, and that the application is utterly defective, frivolous, vexatious and an abuse of the process of this Court. Applicant’s Submissions 20.The Claimant submitted that following the filing of suit, the Respondent's Advocates entered appearance and filed a Preliminary Objection dated 13th June 2023 on the ground that the court lacked jurisdiction to hear the matter, the Claimant's salary being below Kshs. 80,000 as prescribed under Gazette Notice No. 6024 of 22nd June 2018. 21.He submitted that the Claimant's Advocates raised no objection to the Preliminary Objection and made several attempts to obtain a hearing date for the same to be heard and determined, with a view to having the matter transferred to the Magistrate's Court, but were unsuccessful. 22.The Applicant submitted that when the matter came up on the 28th January 2025, his Advocate was logged into court but did not hear the matter being mentioned, and only upon checking the Case Tracking System did they discover that the matter had been dismissed for want of prosecution. 23.On the applicable law, the Claimant placed reliance on Order 17 of the Civil Procedure Code, 2010, which governs the procedure where a party fails to appear on a fixed date. He submitted that Rule 3 thereof provides that where on any day to which the hearing of a suit is adjourned the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes provided under Order 12 or make such order as it thinks fit. 24.He further submitted that Order 12 Rule 3(1) provides that if on the day fixed for hearing, only the Defendant attends and admits no part of the claim, the suit shall be dismissed save for good cause to be recorded by the court. 25.The Applicant submitted that the court should take note that the Claimant's Advocate was indeed present in court on the material date but was unable to respond at the designated time as he did not hear the matter being called out. 26.In support of the application, the Claimant placed reliance on the decision in Julius Kibiwott Tuwei v Reuben Argut & 7 others [2022] KEELC 1126 (KLR), where Court observed:“For the Court to exercise its discretion in favour of the Applicant, he or she has satisfy it that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit…….The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended…... In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" 27.It is the Claimant's submission that the Advocate's failure to attend to the case, though present in court, was an oversight that was neither deliberate nor intentional and ought not to be visited upon an innocent litigant. He urged the court to exercise its discretion in favour of the Claimant and allow the application for reinstatement and transfer of the suit to the Magistrate's Court for hearing and determination. Respondent’s Submissions 28.The Respondent submitted on two issues: whether the Applicant have met the legal threshold for granting of the orders sought in the Claimant/Applicant's Notice of Motion Application dated 6th February 2025; and who should bear Costs in the instant case 29.The Respondent submitted that the sole explanation offered for the failure to appear on the 28th January 2025 is the Claimant's Advocate's bare claim that he was logged into the virtual court system but did not hear the matter called, unsupported by any CTS log, screenshot, system record or contemporaneous communication to the court or to the Respondent's Advocates. 30.The Respondent placed reliance on the celebrated case of Shah v Mbogo & Another [1967] EA 116, where the High Court held“This discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice”.It submitted that this principle was affirmed by the Court of Appeal in Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another [2014] KECA 492 (KLR). 31.It is the Respondent’s submission that the explanation offered by the Claimant falls far below this threshold. It is not an excusable mistake supported by evidence. It is a bare assertion. It cited Tallam v Judicial Service Commission [2026] KEELRC 256 (KLR):“…….The Petitioner blames the court’s filing system but she has produced nothing even communication between herself and the registry concerning the mapping. It is suspect indeed that there would have been an issue of mapping for so many months. The court holds that is more of baseless excuse and the Petitioner simply slept on his job.” 32.It was further submitted that in the present modern era of virtual court proceedings, it would be expected, as is standard practice in most courts that counsel encountering any difficulty or omission would promptly raise the issue with the Court either during the call-over or immediately thereafter, so as to place their position on record. The failure by the Advocate to do so only serves to cast further doubt on the veracity of the assertion and underscores the absence of diligence in the prosecution of the matter. 33.The Respondent thus urged the Court to find persuasion and adopt the standard confirmed in Kulubi v Kenya Power and Lighting Company Limited [2026] KEELRC 1070 (KLR), where the court declined to reinstate a suit and held:“Without valid reasons for the absence from court when the matter came up for hearing, allowing the instant application would be tantamount to sanctioning abuse of the court process." 34.The Respondent submitted that from the date the Memorandum of Response and Preliminary Objection were filed on 13th June 2023 to the date of dismissal on 28th January 2025, a period of approximately nineteen consecutive months elapsed during which the Claimant took not a single active step to prosecute the suit. No letter was written to the Deputy Registrar, no date was sought, no mention was requested and the suit lay completely dormant. 35.It was submitted that the locus classicus on the consequences of inordinate delay is Ivita v Kyumbu [1975] KEHC 4 (KLR), where Chesoni J, as he then was, held that the test for reinstatement is whether there is a delay that is prolonged and inexcusable and whether justice will be done despite the delay. Further, where an action has been dormant for twelve months or more, the defendant is entitled to apply for its dismissal unless the plaintiff shows sufficient reason. 36.The Respondent submitted that the suit having been dormant for nineteen consecutive months, the Ivita v Kyumbu test squarely condemns the Claimant's application. 37.The Respondent further submitted that even after dismissal, the Claimant demonstrated no urgency, the application though dated 6th February 2025 having only been filed on 5th August 2025, a delay of approximately eight months and without a certificate of urgency. More strikingly, even after filing, the Claimant took no steps to have the application listed for hearing and the court was compelled to intervene on its own motion. 38.he Respondent argued that this compound inaction, being dormancy before dismissal, delay in filing the application, and further failure to prosecute the application itself, paints a picture of a litigant who has utterly lost interest in the suit. 39.The Respondent submitted that the argument that an Advocate's oversight should not be visited on an innocent litigant has been consistently and emphatically rejected by the courts as held in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] KECA 987 (KLR) and Muriithi v Njogu & 6 others [2025] KECA 1426 (KLR). 40.The Respondent argued that the Claimant filed no personal affidavit, did not aver that he was unaware of the hearing date, and demonstrated no personal step taken during the nineteen months of dormancy, having entirely delegated prosecution of his own suit. 41.The Respondent submitted that its own inaction in pursuing the determination of its Preliminary Objection did not amount to waiver or acquiescence in the delay. Reliance was placed on Ivita v Kyumbu (Supra), where Chesoni J, adopting the holding of Diplock LJ in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543, held:” Mere inaction on the part of the defendant cannot in my view amount to waiver or acquiescence.” 42.Relying on Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] KECA 987 (KLR), the Respondent submitted that Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities, is a principle of moderation and not a licence for two years of inaction as The Respondent urged the court to weigh the rights of the Respondent, who has been ready to defend since the 13th June 2023, equally against those of an indolent Claimant. 43.On costs, the Respondent submitted that the general principle that costs follow the event applies and that an award of costs is the minimal consequence for the Applicant's conduct in this matter. 44.I have examined all the averments and submissions of the parties herein. The applicant has sought reinstatement of this suit on the ground that on the day fixed for notice to show cause, he logged into the virtual court but the cause was not called. He later learned that the claim had been dismissed for want of prosecution. It is however true that the application is not supported by any evidence like screen shots or login data to show he was present in court. 45.The applicant took eight (8) months to file the application to reinstate the suit a position inconsistent with a party who is desirous of prosecuting his suit and especially if he was present in court as he alleges when the cause was to be called for notice to show cause. 46.It is therefore my finding that the applicants has not been vigilant nor shown interest in presenting this case. That as it may be, this appears to be a case where counsel has gone to bed at the expense of his client. In order not to visit a client on the mistake of his counsel, I will therefore exercise my discretion and allow the application and reinstate the suit on condition that the claimant proceeds and sets down this cause for hearing within 30 days. Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE