Ombech v Public Finance Management Reform & 2 others (Cause E104 of 2021) [2024] KEELRC 2200 (KLR)
The bottom line
#Kenya's Employment Court can reinstate a case withdrawn by a lawyer without the client's blessing, and delays may be forgiven when justice demands it.
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 Court can review and set aside the order of 4th October 2022 recording and adopting the Notice of Withdrawal of the Claim
- 2.Whether the Claimant's previous Advocates acted with authority and bona fides in withdrawing the Claim
- 3.Whether the Application is an abuse of the process of the Court
- 4.Whether the Claimant should be granted leave to amend the withdrawn Claim
Key legal issues
#Whether the recording and adoption of a Notice of Withdrawal renders the Court functus officio
It does not; the Court retains power under Rule 33 of the E&LRC [Procedure] Rules 2016 and Section 12para 3[viii] of the E&LRC Act to review its orders on sufficient reasons
The Court held that withdrawal of a Claim is not necessarily its end; the correct question is whether adoption of the Notice of Withdrawal exhausted the Court's jurisdiction. Since the mandate of the Court had not expired, reopening the Claim was within its powers. This is anchored in the inherent power of review, Article 159para 2[d], and comparative Indian authority permitting recall of withdrawal orders through inherent powers where no specific provision exists.
Whether the Claimant's previous Advocates had apparent authority, exercised bona fide, to withdraw the Claim
No; the Claimant's uncontroverted evidence was that she instructed them to cease acting, not to withdraw the Claim, and no affidavit from the Advocates contradicted her
The Claimant explained she could not raise legal fees and instructed her Advocates to seek leave to cease acting; they instead filed a Notice of Withdrawal. The explanation was not seriously contested, there was no affidavit from the former Advocates, and the Claimant was not in Court when the withdrawal order was recorded. Hence no bona fide exercise of apparent authority was established and the withdrawal could not bind her.
Whether the delay of 1 year and 9 months in bringing the Application was inordinate and disqualifying
The delay was acceptable given the Claimant's explanation of unemployment, lack of finances and retreat to her rural home in Kitale
The Court accepted the explanation that the Claimant was unemployed, hampered by lack of finances, out of communication with her Advocates and unaware of the withdrawal until she enquired from the Court. Delay alone did not defeat the Application where sufficient reason and the interests of justice favoured reinstatement.
Whether the Application was an abuse of the process of the Court
No; the Application was not frivolous, vexatious or oppressive
The Court found the Claimant had not moved the Court to irritate or annoy the Respondents. Referring her to the Advocates Complaints Commission would only address her dispute with her Advocates while letting the substantive employment dispute die. A fresh Claim would be time-barred under Section 90 of the Employment Act, engaging her right of access to justice under Article 48.
Legal principles established
#- The Employment and Labour Relations Court is a specialized jurisdiction with its own procedural rules; the Civil Procedure Rules apply only as a default mechanism
- A Notice of Withdrawal adopted by the Court does not render the Court functus officio; the Court may invoke its inherent power of review on sufficient reasons to recall a Notice of Withdrawal
- The authority of an Advocate to compromise a client's position is apparent and must be exercised bona fide; where bona fides are not shown, the withdrawal will not bind the client
Court orders
#- 1.The order made on 4th October 2022, withdrawing the Claim, is reviewed and set aside, and the Claim is reinstated
- 2.The prayer for amendment of the Claim is struck out, with leave to the Claimant to renew the Application for amendment
- 3.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Cap 234B, Section 12[3][viii]; Article 159[2][d] and Article 48 of the Constitution
Relief refused
#Prayer for leave to amend the Claim
A Party must first have a live Claim before seeking to amend it; the amendment application was premature
Costs
Costs in the cause
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.
The order made on 4th October 2022, withdrawing the Claim, is reviewed and set aside, and the Claim is hereby reinstated.
The prayer for amendment of the Claim is struck out, with leave to the Claimant to renew the Application for amendment.
Costs in the cause.
The Court is however not limited, in exercising its inherent power, and to recall Notices of Withdrawal of Claims, whenever it is persuaded that there is suficient reason, and it is in the interest of justice, to do so.
The door of justice is not closed because a mistake has been made by a Lawyer…
It cannot be the intention of the law, that Notices of Withdrawal of Claims, once filed, are cast in bronze, and not recallable as the Respondents appear to submit
Issues in the judgment
#The judgment does not state the full names of the parties or the case number in the body of the ruling; the parties are referred to only as 'The Claimant' and 'the 1st, 2nd and 3rd Respondents'
There is an internal discrepancy on the dating of the Notice of Withdrawal, described as dated 20th June 2022 but filed on 28th June 2022
The Respondents' Replying Affidavit could not be traced in the physical file
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Savali v City Oil Kenya Ltd (Cause 462 of 2019) [2025] KEELRC 1670 (KLR)[2025] KEELRC 1670 (KLR)9 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Ombech v Public Finance Management Reform & 2 others (Cause E104 of 2021) [2024] KEELRC 2200 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2200/eng@2024-09-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.