https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/489

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E426 OF 2022** **MANSOOR SSERUNJOJI...……….….……...………………………………….CLAIMANT** **VERSUS** **MODERN COAST BUILDERS AND CONTRACTORS LTD.……………….RESPONDENT** **RULING** **Background** 1. Before the Court is the Claimant’s Notice of Motion dated 15th April 2025 and filed on 25th April 2025. The application seeks orders that: 2. The order made on 21st January 2025, dismissing the Claimant’s suit for non-attendance, be set aside; 3. The suit be reinstated for hearing and determination on its merits; and 4. Costs of the application be provided for. 5. The application is supported by the affidavit of Bryan Njiru Mutugi, an advocate having conduct of the matter on behalf of the Claimant. Counsel states that the suit had been fixed for hearing on 21st January 2025, but he inadvertently diarised the hearing for 27th January 2025. Consequently, neither the Claimant nor counsel attended court on the correct hearing date, resulting in dismissal of the suit. The application and supporting affidavit maintain that the non-attendance was unintentional and arose solely from the diary error. 6. Counsel annexed a page from his diary marked BNM-1, showing that CM/ELRC Cause No. 426 of 2022, Mansoor Sserunjoji v Modern Coast Builders Construction Ltd & Another, had been entered for 27th January 2025. 7. The Claimant contends that counsel only learnt that the matter had been listed on 21st January 2025 after perusing the cause list and making inquiries at the Court. By then, the suit had already been dismissed. Counsel maintains that the mistake should not be visited upon the Claimant and that the Respondent would not suffer prejudice that could not be compensated by an award of costs. 8. The Respondent opposed the application through a Replying Affidavit sworn by Carren Cheruto, its Legal Manager. The Respondent contends that the Claimant filed what it describes as a fictitious claim alleging unlawful termination and thereafter failed to prosecute it. It maintains that the Claimant was aware of the hearing date through the Court Tracking System but failed to attend court. 9. The Respondent further states that, following dismissal of the suit, it closed its file, settled its advocates’ fees and archived the matter as concluded. It contends that reinstatement would cause it prejudice and offend the principle that litigation must come to an end. The Respondent also characterises the application as baseless, frivolous and vexatious and asks that it be dismissed. **Parties’ submissions** 1. The Claimant submitted that the failure to attend court was caused by counsel’s inadvertent mistake in diarising 27th January 2025 instead of 21st January 2025. Counsel argued that the mistake was neither deliberate nor intended to delay the proceedings and that the Claimant should be afforded an opportunity to have his employment claim determined on its merits. 2. The Claimant states that the underlying suit concerns alleged wrongful, unfair and unlawful termination of employment. He seeks compensation, terminal dues, a certificate of service and costs. He contends that refusal to reinstate the suit would cause him substantial prejudice by permanently shutting him out from pursuing those remedies. 3. The Claimant invoked the principle that a party should not ordinarily be denied a hearing merely because counsel made an inadvertent mistake, particularly where there is no fraud or intention to overreach and any prejudice can be compensated by costs. That principle is consistent with the Court of Appeal’s holding in Philip Keipto Chemwolo & Another v Augustine Kubende, that a genuine mistake should not necessarily result in a party losing the right to have the case determined on its merits. 4. The Claimant further submitted that counsel had been ready to proceed with one witness, namely the Claimant, and that the hearing would have proceeded but for the mistaken diary entry. 5. The Respondent identified the principal issue as whether sufficient reasons had been given to warrant reinstatement. It submitted that the Claimant had been indolent, that the suit had remained unprosecuted for about two years and that no satisfactory explanation had been offered for the delay. 6. The Respondent relied on Order 17 Rule 2 of the Civil Procedure Rules, Article 159 of the Constitution, and Sections 1A, 1B and 3A of the Civil Procedure Act. 7. The Respondent also raised two procedural objections. First, it argued that the application had been brought under the wrong provisions of law, particularly Article 45 of the Constitution, which relates to the family. Secondly, it contended that the Claimant’s submissions had been drawn or endorsed by Wachenje & Mariga Advocates LLP, although H.N. Njiru & Company Advocates remained the advocates on record and no Notice of Change of Advocates had been filed under Order 9 Rules 5 and 6 of the Civil Procedure Rules. **Issues for determination** 1. Having considered the application, the supporting affidavit, the replying affidavit and the parties’ written submissions, the following issues arise for determination: 2. Whether the application is fatally defective for citing an incorrect constitutional provision; 3. Whether the Claimant’s submissions are incompetent on account of the advocates who drew or endorsed them; 4. Whether sufficient cause has been demonstrated to set aside the dismissal order and reinstate the suit; and 5. Who should bear the costs of the application. Whether the application is fatally defective 1. The Notice of Motion refers to Article 45 of the Constitution. Article 45 concerns the family and plainly has no bearing on an application to reinstate an employment claim dismissed for non-attendance. 2. However, the application also expressly invokes Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, together with Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. Order 12 Rule 7 expressly empowers a court, upon application, to set aside or vary a judgment or dismissal order upon such terms as may be just. 3. The substantive nature of the relief sought is unmistakable. The Claimant seeks the setting aside of an order dismissing his suit for non-attendance. The Respondent understood that case and filed a detailed replying affidavit and submissions addressing the merits of reinstatement. It has not demonstrated any confusion or prejudice arising from the erroneous reference to Article 45. 4. A court must, of course, be moved under an identifiable legal framework. Nevertheless, where the Court has jurisdiction, the substantive relief is clear, the correct enabling procedural rule has also been cited and the opposing party has fully answered the application, an additional erroneous citation does not, without more, render the application incurably defective. 5. The Court therefore finds that the reference to Article 45 was an error or surplus citation. It does not invalidate the application because Order 12 Rule 7, which is the appropriate enabling provision, was expressly invoked. 6. The Court also notes that the Claimant’s written submissions refer in their introductory portion to a Notice of Motion dated 20th November 2023, whereas the application before the Court is dated 15th April 2025 and was filed on 25th April 2025. This is plainly an inconsistency in the submissions. It does not change the identity of the application being determined because the orders sought and the dismissal order of 21st January 2025 are consistently identified. Representation of the Claimant 1. The Respondent argues that the Claimant’s submissions were drawn by Wachenje & Mariga Advocates LLP although H.N. Njiru & Company Advocates remained on record. 2. The record placed before the Court shows that the application and supporting affidavit were filed through H.N. Njiru & Company Advocates. The last page of the Claimant’s submissions indicates that they were dated and signed by H.N. Njiru & Company Advocates for the Claimant/Applicant, although the document also states that it was drawn and filed by Wachenje & Mariga Advocates LLP. 3. The manner in which the two firms appear on the document is irregular and ought to have been clarified. Nevertheless, there is no evidence that H.N. Njiru & Company Advocates had ceased acting or that the substantive application was filed by an unauthorised firm. The submissions were ultimately presented in the name of the advocate on record. 4. Written submissions are arguments placed before the Court; they do not constitute pleadings or evidence. Even were the Court to disregard the Claimant’s submissions, the Notice of Motion and supporting affidavit would remain properly before it and would still require determination on their merits. The Court therefore declines to strike out the application on account of the manner in which the submissions were drawn or endorsed. The irregularity has not been shown to have caused prejudice to the Respondent. Whether sufficient cause has been demonstrated 1. The dismissal order was made following the Claimant’s and counsel’s non-attendance on the scheduled hearing date. The dismissal was therefore regularly made. Consequently, reinstatement is not automatic or available ex debito justitiae merely upon request. It is a discretionary remedy under Order 12 Rule 7, to be exercised judicially and upon terms that are just. 2. The governing principle is that the Court’s discretion is intended to prevent injustice or hardship arising from an accident, inadvertence or excusable mistake, but not to assist a party who has deliberately sought to obstruct or delay the administration of justice. 3. In exercising that discretion, the Court must consider, among other matters: 4. The reason for the non-attendance; 5. Whether the explanation is credible; 6. The length and explanation of any delay in seeking reinstatement; 7. The conduct of the Applicant before and after dismissal; 8. The prejudice likely to be suffered by either party; 9. Whether prejudice can be compensated by costs; and 10. The broader interest in having disputes determined on their merits while ensuring the expeditious disposal of cases. Explanation for non-attendance 1. The explanation offered is specific. Counsel diarised the matter for 27th January 2025 instead of 21st January 2025. That explanation is supported by the exhibited diary page, which contains an entry for this particular case on 27th January 2025. 2. The Respondent disputes the adequacy of the explanation and argues that the matter was listed on the Court Tracking System. It further submits that a litigant has an independent duty to follow up the progress of his case. 3. The Court agrees that a case belongs to the litigant and not solely to the advocate. Parties must remain vigilant and cannot indefinitely blame advocates for every procedural omission. Nevertheless, the question before the Court is not whether counsel acted perfectly. He plainly did not. The question is whether the default was deliberate, contumacious or intended to obstruct justice, or whether it was an inadvertent and remediable mistake. 4. There is no material before the Court demonstrating that the Claimant or counsel deliberately avoided the hearing. The fact that the date was entered in counsel’s diary, albeit incorrectly, is consistent with an intention to attend and prosecute the case. It would be illogical to enter a hearing date in the diary and simultaneously intend to abandon the suit. 5. The Court therefore accepts that the non-attendance arose from an inadvertent diary error. Such an error is not to be condoned, but the law recognises that a genuine mistake should not invariably result in a litigant being denied a determination on the merits, particularly where there is no fraud or intention to overreach. Delay in filing the application 1. The Respondent repeatedly states that the Claimant waited approximately five months after dismissal before filing the application. It also states elsewhere that four months elapsed. 2. Those assertions are not supported by the dates appearing in the record. The suit was dismissed on 21st January 2025. The application is dated 15th April 2025 and was filed on 25th April 2025. The period between dismissal and filing was therefore approximately three months, not five months. 3. The Court acknowledges that the Claimant’s counsel states that he learnt of the dismissal shortly after the hearing date, upon checking the cause list and making inquiries. There is no detailed explanation accounting for every part of the period between late January and late April 2025. Counsel should have moved with greater promptitude. 4. Nevertheless, in the circumstances of this case, the delay of approximately three months is not so prolonged or inordinate as to justify permanently shutting the Claimant out of court, particularly when considered together with the specific explanation for non-attendance and the nature of the employment claim. 5. The Respondent’s additional contention that the suit was instituted in 2023 and had remained unprosecuted for two years is also inconsistent with the court file number and the application. The cause is numbered 426 of 2022, and the application states that the suit was filed on 20th July 2022. 6. That does not absolve the Claimant of the duty to prosecute the matter expeditiously. However, the Court has not been supplied with a complete procedural history showing all the previous dates, adjournments, defaults or steps taken since filing. It would therefore be unsafe to conclude, solely from the Respondent’s assertion, that the Claimant had deliberately abandoned the suit for the entire period preceding dismissal. Prejudice 1. The Claimant risks losing the opportunity to have his allegations of unfair and unlawful termination determined. The merits of those allegations are not presently before the Court, and nothing in this ruling should be understood as expressing a view on whether the claim will ultimately succeed. 2. The Respondent states that it closed and archived its file and settled its advocates’ fees after the dismissal. That is an inconvenience and a relevant consideration. However, the Respondent has not demonstrated that essential records have been destroyed, that witnesses are unavailable, or that a fair trial has become impossible. 3. Any financial or procedural inconvenience resulting from the aborted hearing and the reinstatement application can be adequately compensated by an award of costs. The authorities recognise that, absent fraud, overreach or irremediable prejudice, an inadvertent default may ordinarily be corrected through appropriate terms, including costs. 4. The phrase “litigation must come to an end” is an important principle. It cannot, however, be applied in isolation. It must be balanced against the obligation of the Court to determine substantive disputes fairly and, where possible, on their merits. 5. The Claimant has demonstrated an identifiable and plausible reason for counsel’s non-attendance. The application was filed approximately three months after dismissal. There is no evidence of fraud, intentional delay or an attempt to overreach the Respondent. The Respondent’s prejudice can be mitigated through costs and firm case-management directions. 6. In those circumstances, the interests of justice favour reinstatement of the suit. **Disposition** 1. The Notice of Motion dated 15th April 2025 is therefore allowed on the following terms: 2. The order made on 21st January 2025, dismissing the Claimant’s suit for non-attendance, is hereby set aside. 3. CM/ELRC Cause No. 426 of 2022 is reinstated for hearing and determination on its merits. 4. The Claimant shall bear the Respondent’s costs of the application and the thrown-away costs occasioned by the aborted hearing of 21st January 2025. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**