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ELRCDismissedNot stated in the judgment text

Kepha Nyamweya Mokaya v Nyamira Tea Farmers Savings and Credit Co-operatie Society Limited [2021] KEELRC 1437 (KLR)

Employment and Labour Relations Court
27 January 2021
1,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reinstate a dismissed suit because the claimant himself did nothing for 28 months and could not simply blame his advocate.

What this practically means

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Executive summary

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The claimant filed a Notice of Motion dated 20th September 2019 under Article 159 of the Constitution and sections 3 and 12 of the Employment and Labour Relations Court Act, seeking to set aside an order of 4th May 2018 dismissing his suit for non-attendance and to have the suit reinstated for formal proof. He explained that he had instructed Konosi & Company Advocates in 2016; after the court dismissed the respondent's preliminary objections on 26th April 2017, he followed up with his advocates for a hearing date, only to learn on 21st August 2019 that the suit had been dismissed on 4th May 2018 for non-attendance. In reply, Gladys Bwoma, CEO of the respondent, averred that the claimant had taken no steps for over two years, could not blame the court or his advocates, had admitted owing the respondent Ksh.5,402,186.72, and had lost interest in the matter. The court framed one issue: whether the dismissed suit should be reinstated. Applying the discretionary principles in James Mwangi Gathara and Elosy Murugi Nyaga, the court acknowledged that a diligent litigant should not be penalised for counsel's negligence, but held that the claimant, as owner of the suit, sat back for a record twenty-eight months without evidence of any follow-up. His lapse was inordinate and the application was dismissed with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Should the court reinstate the suit dismissed for non-attendance on 4th May, 2018?

Key legal issues

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01

Whether the suit dismissed for non-attendance on 4th May 2018 should be reinstated

Holding

The application was dismissed; the claimant's 28-month inordinate delay and lack of diligence, not merely his advocate's negligence, justified non-reinstatement.

Reasoning

The court exercises judicial discretion guided by the principle that a litigant not guilty of dilatory conduct should not suffer for counsel's negligence. However, the claimant was the owner of the suit and, after the dismissal of the respondent's preliminary objections on 26th April 2017, took no step until 20th September 2019. He gave no evidence of visits to his advocates, admitted owing the respondent money, and the delay of 28 months was inordinate, indicating loss of interest.

p. 2
02

Applicability of Rule 16 of the ELRC (Procedure) Rules, 2016 (court's power to dismiss for one year of inactivity)

Holding

Rule 16 was noted but the dismissal here was not under that rule; the suit was dismissed because the claimant, having secured a hearing date, failed to attend.

Reasoning

The court observed that under Rule 16 it may dismiss a suit on its own motion where no action is taken within one year, but such action was not necessary here because the dismissal followed the claimant's own non-attendance on a date he had secured through his advocate on 12th April 2018.

p. 2

Legal principles established

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  • A litigant who is not guilty of dilatory conduct should not be debarred from pursuing his rights because of his counsel's negligence; but the claimant remains the owner of the suit and must act diligently himself.
  • It is not sufficient for a claimant to blame his former advocate where he himself sat back and did nothing.

Court orders

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  1. 1.The application dated 20th September, 2019 was found without merit and dismissed
  2. 2.Each party to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution and sections 3 and 12 of the Employment and Labour Relations Court Act

Relief refused

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Setting aside the order of 4th May 2018 dismissing the suit and reinstating the suit for formal proof

The claimant's inaction from 26th April 2017 to September 2019 was inordinate; a litigant cannot blame his advocate while he himself took no steps for over two years.

p. 2

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the application dated 20th September, 2019 is hereby found without merit and is dismissed. Each party shall bear own costs.
p. 2Final orders - dismissal of reinstatement application
A litigant who is not guilty of dilatory conduct should not be debarred from pursuing his rights in court because of the negligence of his counsel.
p. 2Principles governing reinstatement of suit dismissed for non-attendance
The claimant retains his right to move the court and secure his rights even where there is inaction by his advocates as he is the owner of the suit and not his advocates.
p. 2Litigant's own responsibility for prosecution of suit

Issues in the judgment

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minor

The judgment contains internally inconsistent dates regarding the fixing of the hearing date: 'On 23rd August, 2018 the respondent attended the court registry and was allocated a hearing date for the 5 th October, 2017' - a 2018 event leading to a 2017 date.

minor

Conflicting dates on when the reinstatement application was filed - the chronology says 4th September 2019 while the application itself is dated 20th September 2019.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kepha Nyamweya Mokaya v Nyamira Tea Farmers Savings and Credit Co-operatie Society Limited [2021] KEELRC 1437 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1437/eng@2021-01-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.