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ELRCDismissedNot stated on face of extract (application dated 8th July 2024)

Ochanda v Kisumu Polytechnic Board of Governors (Employment and Labour Relations Cause 567 of 2013) [2025] KEELRC 707 (KLR)

Employment and Labour Relations Court
7 March 2025
2,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to reopen a lawsuit dismissed seven years earlier, ruling that unexplained delay and a private settlement left nothing for it to decide.

What this practically means

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Executive summary

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The Claimant, suspended from work under section 62 of the Anti-Corruption & Economic Crimes Act pending Anti-Corruption Court proceedings, filed an application dated 8th July 2024 seeking to vacate or vary the orders of 2nd October 2017 by which Hon. Lady Justice Mbaru Monica dismissed his suit for want of prosecution, and to reopen the file so he could prosecute the matter. His counsel in particular sought to reopen the suit to pursue costs, contending that the Claimant and Respondent had settled the claim privately without involving their advocates, thereby denying counsel his fees. The Respondent, through the Attorney General, opposed the application as an abuse of process, citing an inordinate delay of about 7 years, noting the Claimant's acquittal and reinstatement, and a consent settlement of Kshs 4,531,958.64 plus accrued leave of Kshs 382,060, and pointing out that the party and party Bill of Costs was struck out on 29th February 2024 because the dismissal carried no orders as to costs. Applying Rule 43 of the ELRC (Procedure) Rules, 2024 and the reinstatement principles in Ivita v Kyumbu and Stephen Ndichu v Monty's Wines and Spirits Ltd, the court held that reinstatement is discretionary and exercisable only for good cause; that the parties could have sought a stay pending the Anti-Corruption case but did not; that the seven-year delay was unexplained; and that with the matter settled there was nothing substantive to determine. The application was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the suit dismissed for want of prosecution on 2nd October 2017 should be reopened/reinstated
  2. 2.Whether the application was filed after inordinate and unexplained delay
  3. 3.Whether the Claimant's counsel should be permitted to argue his costs of the suit

Key legal issues

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01

Whether the suit dismissed for want of prosecution on 2nd October 2017 should be reinstated

Holding

The application for reinstatement was dismissed; the delay of about 7 years was not adequately explained, the parties had settled the matter between themselves, and there was nothing substantive for the court to determine.

Reasoning

The court applied Rule 43 of the ELRC (Procedure) Rules, 2024 on dismissal for want of prosecution and the reinstatement principles in Ivita v Kyumbu and Nixon Andati. It held that if parties wished the suit stayed pending the Anti-Corruption case they should have told the court. The essence of dismissal is anchored on Article 159(2)(b) that justice should not be delayed, balanced against Articles 48 and 50 on access to justice and fair hearing. Delay was unexplained and the claim was settled.

p. 4
02

Whether the Claimant's counsel could reopen the suit to pursue his advocate-client/party-and-party costs

Holding

No. Costs are discretionary, no costs were ordered when the suit was dismissed, and the party and party Bill of Costs had been struck out for that reason.

Reasoning

The court noted the suit was dismissed with no orders as to costs and the Party to Party Bill of Costs was struck out on 29th February 2024 because no orders as to costs existed. Since the matter was dismissed for want of prosecution, costs could not issue to parties who failed to prosecute their matter. The alleged private settlement between the parties without involving advocates did not move the court to reinstate the suit.

p. 4

Legal principles established

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  • Reinstatement of a suit dismissed for want of prosecution is a discretionary power exercised only for good cause, judiciously, to serve justice to both parties.
  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay.
  • Where a suit was dismissed for want of prosecution with no orders as to costs, the court could not issue costs to parties who failed to prosecute their matter.

Court orders

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  1. 1.The application dated 8th July 2024 is found without merit and is dismissed
  2. 2.Costs awarded to the Respondent
  3. 3.It is so ordered

The bench

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

Wrote the judgment

Jurisdiction invoked
Order 51 rule (1) of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A of the Civil Procedure Act, Articles 50(1) and 159 of the Constitution of Kenya

Relief refused

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Reinstatement/reopening of the suit dismissed on 2nd October 2017 to allow the Claimant to prosecute the matter and argue the party and party Bill of Costs

Inordinate, unexplained delay of about 7 years; the parties had already settled the matter between themselves; costs are discretionary and no costs were ordered when the suit was dismissed for want of prosecution

p. 5

Costs

The application was dismissed with costs (judgment states 'The Application is therefore found without merit and is hereby dismissed costs' — the words 'with costs' appear to have been omitted, but costs were awarded against the Applicant).

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.

The Application is therefore found without merit and is hereby dismissed costs. It is so ordered.
p. 5Final orders - dismissal of the application
Further reinstatement of suits is also a discretionary power of the court and will only be exercised for good cause albeit judiciously to serve justice to both parties.
p. 4Discretion to reinstate a dismissed suit
Counsel has not adequately explained the inordinate delay in approaching the court.
p. 4Inordinate delay
the parties already settled the matter between themselves and the court is of the view there is nothing substantive for it to determine at this point.
p. 5Mootness of the reinstatement application

Issues in the judgment

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minor

The costs order in the disposition appears defective - the words 'with' appear to have been omitted from the sentence dismissing the application.

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, "Ochanda v Kisumu Polytechnic Board of Governors (Employment and Labour Relations Cause 567 of 2013) [2025] KEELRC 707 (KLR)", Case Analysis (2025). Not stated on face of extract (application dated 8th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/707/eng@2025-03-07

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