Okumu v Gyto Success Company Limited (Cause 507 of 2018) [2024] KEELRC 1789 (KLR)
The bottom line
#A Kenyan employment court reinstated a lawsuit dismissed after a lawyer missed the hearing, but only on strict conditions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant has shown good cause for the court to set aside the order of 24th January 2024 dismissing the suit for want of prosecution
- 2.Whether the failure by claimant's counsel to attend the hearing on 24th January 2024 was an excusable oversight
- 3.Whether reinstating the suit would occasion the respondent prejudice not compensable by costs
Key legal issues
#Whether the applicant demonstrated good cause to set aside the dismissal for want of prosecution
The application was allowed; counsel's failure to diarize the hearing date was accepted as excusable and the respondent, having recently come on record, would suffer no prejudice not compensable by costs.
The court reviewed the chronology, noted counsel's affidavit admitting the failure to diarize the hearing date and to notify the client, and held the mistake of counsel should not be visited on the client. The respondent had only recently come on record around April 2023, so prejudice compensable by thrown away costs. Reinstatement was conditioned on a 30-day timeline to fix the hearing, failing which the suit would stand dismissed again.
The test for setting aside a dismissal order
The discretion must be exercised judiciously upon good cause shown, weighing possible prejudice to the respondent and whether that prejudice can be compensated by an award of costs.
The court articulated the governing principles: an applicant seeking setting aside must demonstrate good cause; the court must weigh the possible prejudice the order might occasion the respondent and whether an award of costs adequately compensates it. On the facts, no uncompensable prejudice arose since the respondent had come on record only recently.
The claimant's diligence in prosecuting the suit
The court criticized the claimant's conduct, noting repeated requests to proceed as an undefended cause without proof of service of summons.
The court traced the history: despite multiple requests to certify the matter as an undefended cause, the claimant never provided an affidavit of service of summons, which the court declined to accept. Actual service appears to have occurred only around March 2023, evidenced by the respondent coming on record in April 2023, nearly five years after filing. This conduct informed the conditional nature of the reinstatement.
Legal principles established
#- Setting aside a court order is discretionary and must be exercised judiciously on demonstrated good cause, weighing prejudice to the respondent and whether it is compensable by costs.
Court orders
#- 1.The application dated 9th February 2024 is allowed
- 2.The order dismissing the suit for want of prosecution made on 24th January 2024 is set aside and the suit reinstated
- 3.The suit be set down for hearing within 30 days of the ruling, in default of which it shall stand dismissed for want of prosecution
- 4.The claimant/applicant to pay the respondent thrown away costs of Kshs. 5,000/- before the hearing of the suit, on a date to be scheduled before the Deputy Registrar
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the court to set aside its own orders (application under the court's discretionary powers to set aside dismissal for want of prosecution)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Setting aside any order made by a Court is at the discretion of such Court. Such discretion must be exercised judiciously.
The applicant seeking the Court’s discretion in that regard must show good cause why they the Court should exercise the discretion in their favour.
the Court will allow the application on terms that the suit herein be set down for hearing within 30 days of this ruling. In default, the suit shall stand dismissed for want of prosecution.
Second, the claimant/applicant shall pay the respondent thrown away costs of Kshs. 5,000/- before the hearing of the suit on a date to be scheduled before the Deputy Registrar.
From the foregoing, the Court frowns upon the claimant’s conduct in this matter which has brought about the present state of afiairs.
Issues in the judgment
#The judgment refers to the dismissal order as made on both 24th January 2024 and 25th January 2024
The respondent's replying affidavit refers to the claimant as 'Appellant' although this is a first-instance suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okumu v Gyto Success Company Limited (Cause 507 of 2018) [2024] KEELRC 1789 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1789/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.