Wangari v Academy (Cause E906 of 2023) [2026] KEELRC 1643 (KLR) (18 June 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 18th June 2026) **CAUSE NO. E906 OF 2023** **LEAH WAMBUI WANGARI.........................................CLAIMANT** **-VERSUS-** **SAMNAM TARGET ACADEMY................................RESPONDENT** **RULING** 1. The suit herein came up for hearing on 4th November 2025 but only the Respondent attended court. After the Respondent satisfied the court that a hearing notice had been served on the Claimant, the suit was dismissed for non-attendance . The Claimant has now moved the court vide Notice of Motion dated 13/11/2025 urging for the suit to be reinstated and set down for hearing. 2. The Motion is supported by an affidavit sworn by one Justin Waningu Kamuye, Industrial Relations Officer for KUDHEIHA. The Motion is opposed by the a Replying Affidavit sworn by Nancy Kaaniru Ndewa and Samuel Kung’u Mbugua on 5th December 2025. 3. The Claimant’s case is that the non- attendance was not intentional but due to prevailing circumstances and controversies surrounding ineffective hand over of files and miscommunication by Dorcas Mbehe Musyoka. She averred that she is keen on prosecuting her suit to its logical conclusion and that it is in the interest of justice that the suit be reinstated. 4. The Respondent’s case on the other hand is that the Claimant’s motion is frivolous and an abuse of the court process. It averred that the suit was instituted against the named Respondent and the pleadings served upon Samnam Education Centre, a different person. 5. The Respondent’s further case is that since 29th January 2025 when the suit came up for mention in court, the Claimant never attended court again. It wavered that the Claimant was duly served with a hearing notice for 4th November 2025 but she failed to attend court. An Affidavit of Service was filed as proof of service which convinced the court to dismiss the suit. 6. The Respondent avers that no good cause has been shown by the Claimant for her failure to attend court for the hearing. 7. The Motion was canvassed by written submissions. I have carefully considered the Motion, Affidavits and the submissions presented by both sides. The main issue for determination is whether the suit should be reinstated. **Analysis** 1. The court has a wide discretion to reinstate a suit dismissed for non-attendance as affirmed in a legion of court decisions. However for the discretion to be exercised, the Applicant must demonstrate sufficient course for his/her absence; must move the court without inordinate delay; and must be wiling to meet the condition for reinstatement to be imposed by the court. 2. In this case, service of hearing notice is not denied but the Applicant alleges that an officer of the union who was having the conduct of suit left without a proper handing over and that caused the non-attendance. She maintains that she is keen to prosecute her suit. 3. However the Respondent contends that the Claimant has a history of not attending court even when dates were taken by consent. She also failed to attend the hearing after being served with hearing notice. It also avers that the Claimant is proceeding against a wrong party. 4. I have carefully considered the above contentions and the court record. There is no doubt that the Claimant was served with a hearing notice but failed to attend court to prosecute her suit. It is also clear that she filed the instant motion with speed after learning about the dismissal of the suit. 5. However the court must satisfy itself that a sufficient course has been demonstrated to warrant exercising its discretion. The Claimant’s allegation that Ms. Musyoka was in conduct of the suit is evident in the court record of 30th October 2024 and 29th January 2025. I have no reason to doubt that Ms. Musyoka left the union. Her exist might have caused the non- attendance of the Claimant for the hearing. I consider the explanation given to be sufficient to warrant exercise of my discretion as prayed. 6. However the court takes judicial notice that reinstatement of the suit will inconvenience the Respondent. I will remedy the inconvenience by awarding the Respondent Kshs. 10,000 as throw away costs to be paid within 15 days of this ruling. The costs will be paid by KUDHEIHA (Claimant’s trade union) who caused the suit to be dismissed. 7. In conclusion I make the following orders:- 1. The orders of this court made on 4th November 2025, are set aside and the suit reinstated for determination on merits. 2. He Claimant’s union (KUDHEIHA) is condemned to pay the Respondent throw away costs of Kshs. 10,000 with 15 days of this Ruling. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 18TH DAY OF JUNE, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Kamunye for Claimant Muthee for Kabiru for Respondent