https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1421

Munguti v Dakawou Transport Ltd (Employment and Labour Relations Cause E1011 of 2021) [2026] KEELRC 1421 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1421 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E1011 of 2021 HS Wasilwa, J May 26, 2026 Between Mulu Munguti Claimant and Dakawou Transport Ltd Respondent Ruling 1.The Claimant/ Applicant filed a Notice of Motion application dated 25th June 2025 seeking orders: -1.The court orders made on 29th October, 2024 be set aside and reinstate this matter for leave to file in the right court for hearing and determination.2.The costs of this Application be costs in the case Claimant/Applicant’s Case 2.It was stated that the Claimant’s Advocate drafted the Statement of Claim on 2nd August, 2023 and subsequently filed the same on 7th December, 2023 pursuant to the instructions of the Claimant. 3.The Applicant states that upon filing and service of the suit upon the Respondent, his advocates noted that this Court lacks pecuniary jurisdiction to entertain the matter on account that the Claimant’s salary was below Kshs. 80,000 as provided under Gazette Notice No. 6024 of 22nd June, 2018. 4.The Respondent thereafter filed an application challenging the Court’s pecuniary jurisdiction and that the said application was allowed on 29th October, 2024. 5.It is the Applicant’s case that following the said determination, this Court ought to reinstate the matter and transfer the same to the lower court for hearing and determination. Respondent’s Case 6.The Respondent states that the instant suit was dismissed on 29th October, 2024 after its Advocates on record filed an application dated 29th February, 2024 seeking dismissal of the suit for lack of pecuniary jurisdiction. 7.The Respondent avers that despite being duly served, the Claimant/Applicant’s Advocates neither filed a Replying Affidavit in opposition to the said application nor attended Court on several occasions when the application came up for mention and/or hearing. 8.The Respondent contends that the Claimant/Applicant has not tendered any credible, sufficient or satisfactory explanation of his failure to attend Court or comply with the procedural requirements at the material time. 9.It is the Respondent’s case that the present application was filed approximately eight (8) months after the dismissal of the suit and that the said delay is inordinate, unexplained and inexcusable. The delay thus disentitles the Applicant from the equitable relief sought, equity aiding the vigilant and not the indolent. 10.The Respondent asserts that the Claimant/Applicant has neither accounted for the delay nor demonstrated diligence or urgency in seeking the discretionary orders for reinstatement. 11.The Respondent further states that it is trite law that a party seeking reinstatement must satisfactorily explain the delay and demonstrate diligence, good faith and a genuine intention to prosecute the matter, which the Applicant has failed to do. 12.The Respondent contends that the Court’s discretion is intended to avoid hardship arising from accident, inadvertence or excusable mistake and not to assist a party who has deliberately sought to obstruct or delay the course of justice. 13.The Respondent states that it complied with all procedural requirements and ought not to be punished for the Claimant/Applicant’s indolence, neglect or failure to prosecute the suit. 14.It is the Respondent’s case that reinstatement of the suit after such prolonged and unjustified delay would occasion prejudice to the Respondent, result in unnecessary additional costs and undermine the principle of expeditious disposal of cases. 15.The Respondent thus asserts that reinstatement of the suit, which was lawfully dismissed, would amount to the Court aiding the Claimant/Applicant in the abuse of the Court process. Claimant/Applicant’s Submissions 16.The Applicant submitted that Order 17 of the Civil Procedure Rules, 2010 provides for the procedure where a party fails to appear on a fixed date for hearing of a suit. Reliance was placed on Order 17 Rule 3 which 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 as provided under Order 12 or make such order as it may think fit.” 17.The Applicant further submitted that Order 12 Rule 3(1) of the Civil Procedure Rules provides that where, on the day fixed for hearing, only the Defendant attends and admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the Court. 18.It was submitted that when the matter came up before Court, the Claimant’s Advocate was not aware of the Court dates and was therefore unable to respond within the designated timelines. 19.Relying on Julius Kibiwott v Reuben Argut & 7 Others, ELC No. 87 of 2018 the Applicant submitted that the Court observed that to exercise its discretion in favour of the applicant, he or she has to satisfy it that there is sufficient cause or reason to warrant it to put into use in setting aside the order of dismissal and subsequently reinstate the suit for the purpose of transferring to lower court for hearing and determination. The Court further explained “sufficient cause” to mean a cause which is adequate or enough in the circumstances and that the party ought not to have acted negligently or without bona fides, each case depending on its own facts and circumstances to enable the Court exercise its discretion. 21.It is the Applicant’s submission that in the present suit, the Claimant’s Advocate misdiarized the matter and consequently lost track of the case, which oversight was neither deliberate nor intentional. 22.The Applicant argued that the mistake of counsel ought not to be visited upon an innocent litigant and urged the Court to exercise its discretion in favour of the Claimant/Applicant by allowing the Application for reinstatement and transfer of the suit to the lower Court for hearing and determination. Respondent’s Submissions 23.The Respondent identified the following issues for determination: Whether the Applicant has established sufficient cause to warrant reinstatement of the suit; Whether reinstatement would prejudice the Respondent and undermine the overriding objective of the Court; Who should bear the costs of the Application. 24.On the first issue, the Respondent submitted that it is trite law that the power to set aside or reinstate a suit dismissed by the Court is discretionary and that such discretion must be exercised judiciously and upon sufficient cause being demonstrated. 25.It was submitted that the Applicant bears the burden of proving that the failure to oppose the Application dated 29th February 2024 and/or attend Court was neither deliberate nor intended to obstruct or delay the course of justice. 26.The Respondent submitted that the record clearly demonstrates that its application challenging the Court’s pecuniary jurisdiction was duly served upon the Claimant’s Advocates on record but despite such service, no Replying Affidavit was filed and no appearance was made on the several occasions the matter came up for mention and/or hearing. 27.The Respondent argued that the omission persisted over a considerable period of time and that the dismissal of the suit on 29th October 2024 arose from the Claimant’s failure to prosecute and defend the proceedings despite being duly served. The Applicant has failed to place before Court any cogent, credible or sufficient explanation for the prolonged inaction. 28.The Respondent further submitted that whereas Courts have acknowledged that mistake of counsel, inadvertence or oversight may in appropriate circumstances amount to sufficient cause, such explanation must be specific, plausible and supported by evidence and that a bare allegation of inadvertence does not meet the threshold for exercise of judicial discretion. It was argued that the explanation advanced by the Applicant’s Advocates that the matter was mis-diarized and consequently lost track of was neither sufficient nor plausible in the circumstances. 29.It is the Respondent’s submission that counsel did not merely miss a single Court appearance but failed to attend several mentions and/or hearings and equally failed to file any response to the Respondent’s Application and that such repeated inaction could not reasonably be attributed to a mere diary error. 30.Reliance was placed in Kabaya & another v Gaitho & another* [2023] KEELC 19292 (KLR) where the Court declined to set aside dismissal orders on account that the reasons advanced for non-attendance were insufficient and the Applicants had delayed unreasonably in filing the reinstatement application. 31.It was thus submitted that the present application for reinstatement was filed approximately eight (8) months after the dismissal of the suit and that no satisfactory explanation had been tendered for the inordinate delay. 32.The Respondent argued that the prolonged and unexplained indolence demonstrated lack of diligence on the part of the Applicant and militated against the exercise of the Court’s discretion in favour of the Applicant. It cited Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014] KEHC 7255 (KLR): “...inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore inexcusable.” 33.The Respondent submitted that the delay was manifestly excessive and wholly inexcusable and that in the absence of a satisfactory explanation for failure to oppose the earlier Application, the Applicant had failed to demonstrate sufficient cause to warrant reinstatement of the suit. 34.On the second issue, the Respondent submitted that the overriding objective of the Court is to facilitate the just, expeditious, proportionate and affordable resolution of disputes and that parties are under a duty to assist the Court in achieving the said objective. 35.The Respondent argued that it properly moved the Court through an Application challenging jurisdiction, which application was heard and determined after the Claimant failed to respond or participate in the proceedings. 36.It was submitted that the matter was marked as closed and that reopening the proceedings in the absence of sufficient cause would occasion prejudice to the Respondent who is entitled to certainty and finality in litigation. 37.The Respondent further submitted that reinstatement at this stage would delay resolution of the dispute and undermine the principles of procedural discipline and respect for Court processes and that the Respondent ought not to be subjected to renewed litigation on account of the Claimant’s unexplained indolence. 38.The Respondent argued that reinstatement of the suit would occasion unnecessary additional costs, undermine finality in litigation and prejudice the Respondent who had acted diligently throughout the proceedings. 39.On costs, the Respondent submitted that it is a settled principle that costs follow the event unless the Court orders otherwise for good reason. 40.It was submitted that the present Application was necessitated by the Applicant’s own failure to diligently prosecute the matter and respond to the Respondent’s earlier application and that the Respondent had been compelled to defend the present application thereby incurring further legal costs. 41.The Respondent therefore prayed that in the absence of any exceptional circumstances warranting departure from the general rule, costs of the application be awarded to the Respondent. 42.I have examined all the averments and submissions of the parties. It is actually not clear what the applicants seek before this court. They are simply asking court to set aside its orders made and reverse them accordingly. This is tantamount to asking this court to sit on appeal on its own orders which this court cannot do. I decline this invitation and dismiss this application accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE