Matheka v Kenyatta National Hospital (Cause E241 of 2021) [2025] KEELRC 897 (KLR)
The bottom line
#Kenya's Employment Court revived a dismissed worker's case because the record could not prove both parties were properly told about a changed hearing date.
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 should set aside its order of 30 May 2024 dismissing the Cause for want of prosecution after a Notice to Show Cause
- 2.Whether the Claimant's failure to attend Court was an advocate's mistake that should not be visited on the client
- 3.Whether the Respondent would suffer prejudice if the dismissal order was vacated and time extended
Key legal issues
#Whether the dismissal of the Cause for want of prosecution should be set aside
The Court vacated the dismissal, giving the Claimant the benefit of doubt because the record did not establish proper notification of the altered Notice to Show Cause date.
The Cause was dismissed after a Notice to Show Cause following non-attendance on 22 April 2024. However, the record did not show how or why the return date changed from 27 May 2024 to 31 May 2024, nor whether parties were notified of the change, and the Claimant's affidavit did not disclose how he knew of the 31 May 2024 date. Faced with these unexplained irregularities, and without demonstrated prejudice to the Respondent displacing the claim, the Court elected to give the Claimant the benefit of doubt and vacate the dismissal, directing the Cause to hearing.
Whether an advocate's mistake should be visited on the client
The competing positions were noted: the Claimant relied on the principle that an advocate's mistake should not be visited on the client, while the Respondent contended diligence by the client is required; the Court did not expressly adopt either principle but resolved the matter on the defective notice record.
Counsel relied on conflicting authorities: Ham v SOS on not punishing a client for counsel's mistake, and Okogo v Omoro on excusing such mistakes only where the client was diligent, pointing to three prior non-appearances. The Court did not decide the point as a principle; instead it examined the record and found unexplained alterations to the Notice to Show Cause dates, which grounded the discretionary relief rather than an articulation of the mistake-of-advocate doctrine.
Legal principles established
#- A party may be given the benefit of doubt where the record does not show how or whether parties were notified of a change of the hearing date, when a suit is dismissed after a Notice to Show Cause.
Court orders
#- 1.The order dismissing the Cause on 30 May 2024 is vacated
- 2.The Cause to be progressed to a hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers of the Employment and Labour Relations Court to set aside its own orders (Motion under the Court's procedural rules; no specific provision quoted in the judgment)
Relief refused
#Costs of the application
The Court made no order on costs; the Motion sought costs but the final orders were silent.
Costs
No costs order made; the Motion had sought that costs be provided for but the final orders were silent on costs.
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 dismissing the Cause is vacated with directions that the Cause be progressed to a hearing.
The record does not show how and why the date for the Notice to Show Cause was altered from 27 May 2024 to 31 May 2024. There is also no indication of how and whether the parties were notified.
The Court will give the Claimant a benefit of doubt.
Issues in the judgment
#Internal date inconsistency: paragraph 1 states the Cause was dismissed on 30 May 2024, while paragraphs 17 and 20 refer to the Court sitting/dismissal on 31 May 2024.
Paragraph 15 records a return date of 27 May 2024 while paragraph 1 refers to dismissal on 30 May 2024 and paragraphs 17 and 20-21 refer to 31 May 2024, leaving the actual dismissal date unclear.
The judgment does not state the cause number or neutral citation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matheka v Kenyatta National Hospital (Cause E241 of 2021) [2025] KEELRC 897 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/897/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.