https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1429

Murage v Amazon Fronts Limited (Cause E067 of 2025) [2026] KEELRC 1429 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1429 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Cause E067 of 2025 Nzioki wa Makau, J May 28, 2026 Between Lucy Wairumu Murage Claimant and Amazon Fronts Limited Respondent Ruling 1.The Respondent has moved this Court by way of the application dated 20th February 2026 seeking, inter alia, leave for the firm of Mwaura Ngugi Gichinga & Company Advocates to come on record after judgment; an order setting aside and/or reviewing the judgment delivered on 27th January 2026; such further relief as the Court may deem fit; and costs of the application. 2.The application is expressed to be premised on the affidavit of Mr. Boniface Mwaura, although the supporting affidavit annexed thereto is sworn by Ms. Winnie Anyango Owinga. Be that as it may, the Respondent contends that upon receiving a demand letter from the Claimant's advocates, it consulted its service end user, Shaanxi Hydro Power Engineering Group, which agreed to defend the suit and consequently instructed the firm of Omondi, Omeri & Mwasaru Advocates to act on its behalf. According to the Respondent, the said advocates failed to defend the suit, resulting in judgment being entered without its participation. It maintains that it has a strong defence and argues that the mistake of the firm of Omondi, Omeri & Mwasaru ought not to be visited upon it. The Respondent further submits that, in the interests of justice, the application should be allowed so as to afford it an opportunity to be heard on merit. It adds that the Claimant will not suffer any prejudice if the suit is reopened. 3.In opposition to the application, the Claimant swore a replying affidavit on 11th March 2026. She deposes that the application is fatally defective for having been filed by advocates who were not properly on record, contrary to Order 9 Rule 9 of the Civil Procedure Rules. According to the Claimant, the firm of Mwaura Ngugi Gichinga & Co. Advocates ought first to have sought leave of the Court before filing the application, which it failed to do. With regard to the Respondent's contention that judgment was entered without its participation, the Claimant terms the allegation misleading, maintaining that the Respondent was duly served with the pleadings, mention notices, hearing notices, and notice of entry of judgment, as evinced by annexture "LWM" to the replying affidavit. The Claimant further argues that the mistakes of the Respondent's previous advocates should not be visited upon her. Consequently, she urges the Court to dismiss the application on the basis that the Respondent has failed to disclose any triable issues warranting the setting aside of the judgment. She further deposes that she stands to suffer great prejudice, having awaited the fruits of her judgment since 27th January 2026. Nonetheless, and without prejudice to the foregoing, she states that she would be amenable to the suit commencing de novo on condition that the Respondent deposits the entire decretal sum in Court. 4.The application was canvassed by way of written submissions, with only the Respondent complying. Respondent/Applicant's Submissions 5.The Respondent urges the Court to allow the application so as to enable the dispute to be heard and determined on its merits. It submits that this Court is vested with discretion under section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice. It further contends that it stands to suffer substantial prejudice if the application is dismissed. In support of its position, the Respondent relies on Odhiambo v Mwangi (Environment and Land Case 475 of 2015) [2025] KEELC 5382 (KLR), where the Court frowned upon the dismissal of suits for want of prosecution, describing it as a draconian measure that drives a litigant from the seat of justice and likening it to the "Sword of Damocles," which should only draw blood where absolutely necessary. The Respondent also cites the case of Ogeta v Oriaro (Environment and Land Appeal E021 of 2023) [2025] KEELC 4125 (KLR), in which the Court observed as follows:“Moreover, courts exist to serve substantive justice for all parties to а dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon merit of the matter. This is the fundamental principal of natural justice as enunciated......" 6.On the strength of the foregoing, the Respondent submits that it has a strong defence and accordingly urges the Court to allow the application. Disposition 7.The discretion to set aside is wide and the discretion should be exercised judiciously with due regard to the particular circumstances of the case. The rules of the court must prima facie be obeyed and where the Court is called to exercise its discretion in favour of a party who has failed to attend court or comply with the directives of the court by failing to comply with set timelines during which some step in procedure requires to be taken, there must be material upon which the court can exercise its discretion. Otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation. This is not the end of the issues to be considered. 8.In the case of CMC Holdings Ltd v Nzioki [2004] KLR 173 the Court of Appeal held:“The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues." 9.In the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 (unreported) Kimaru J. (as he then was) expressed himself thus:“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff's determination to execute the decree issued in its favour is an indictment on the defendant. She had been indolent and taking into account her last conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant." 10.In this case, there is evidence the Respondent was duly served with the pleadings, mention notices, hearing notices, and notice of entry of judgment, as evinced by annexture "LWM" in the Claimant's replying affidavit. The Respondent's proposed defence does not disclose any triable issues warranting the setting aside of the judgment and it would be an exercise in futility to grant the request to set aside as no meaningful defence to the claim is offered. In the case of Shah v Mbogo [1967] EA 116 and 123B, Harris J (as he then was), stated:-“The 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 the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice." 11.Having considered the matters stated above and taking into account that the Court's power to set aside is discretionary, the Court finds that the Respondent's application presently before the Court lacks merit, and the said application is dismissed albeit with no order as to costs since the Claimant decided not to comply with the direction on filing of submissions.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026NZIOKI wa MAKAU, MCIArb.JUDGE