Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment extract

Wanyembi v Council, University of Kabianga (Cause 50 of 2019) [2025] KEELRC 1172 (KLR)

Employment and Labour Relations Court
25 April 2025
875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

An employment claim died because the claimant never served the documents, and the court refused to revive it after he gave an untrue explanation.

What this practically means

#

Executive summary

#
The Claimant filed a claim on 17th September 2019; summons issued on 30th September 2019 and were valid for six months under Rule 11 of the E&LRC (Procedure) Rules, 2016. The Claimant failed to serve the summons and Statement of Claim despite directions on 30th January 2020 (21 days to serve) and 3rd March 2020 (7 further days). On 3rd March 2020 Hon. Byram Ongaya J directed service within 7 days, in default the claim to be deemed abated. The Deputy Registrar confirmed on 16th July 2020 that no service had occurred and that the claim had abated. Nearly four years later, by an application dated 16th September 2024 supported by his affidavit, the Claimant sought review and setting aside of those orders and reinstatement of the claim, alleging his then advocates never informed him of the hearing and that the claim had been dismissed for non-attendance. The Respondent, through an affidavit of its Vice-Chancellor, Professor Eric Koech, stated it only became aware of the claim upon service of the application and opposed reinstatement. The Court found the Claimant's account untruthful: his current advocates were present at both mentions, Nakitare's firm had asked for a hearing date, and it was implausible he only learnt of the abatement in 2024. The claim had abated, not been dismissed. The Court held the Claimant had thrice abused court process and declined the application, deemed the claim abated, closed the file, and made no order on costs. Judgment delivered electronically at Kericho on 25th April 2025 by James Rika, Judge.

Questions the Court framed

#

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

  1. 1.Whether the Court should review and set aside the orders of 3rd March 2020 and reinstate the Claim
  2. 2.Whether the Claim was dismissed for non-attendance/non-prosecution or abated for non-service
  3. 3.Whether the Claimant's explanation for the delay and non-service was credible

Key legal issues

#
01

Status of the claim: dismissal or abatement

Holding

The Claim abated for non-service of the Notice of Summons and Statement of Claim; it was never dismissed for non-attendance or non-prosecution.

Reasoning

The record showed summons issued on 30th September 2019, valid for six months under Rule 11 of the E&LRC (Procedure) Rules, 2016. The Claimant failed to effect service despite directions of 30th January 2020 and 3rd March 2020, and the Claim was deemed abated in accordance with the orders of 3rd March 2020. The Claimant's characterisation of the outcome as a dismissal was factually wrong, rendering his application misplaced.

p. 2
02

Credibility of the Claimant's explanation and blame-shifting to former advocates

Holding

The Claimant's assertion that a different firm failed to inform him of the hearing was untrue; his current advocates were present on 30th January 2020 and 3rd March 2020, and Nakitare's firm had even asked for a hearing date.

Reasoning

The Court found the current advocates were represented at both mentions and had requested a hearing date. It was implausible that the Claimant only learnt of the abatement in 2024 while represented throughout. He also could not shift blame to previous advocates, as there was a whole six months within which to serve and no showing that previous advocates represented him throughout that period.

p. 2
03

Abuse of the process of the Court

Holding

The Claimant abused court process by filing without serving, by seeking a hearing date without serving the Respondent, and by seeking reinstatement of an abated claim on the false premise of dismissal.

Reasoning

The Court catalogued three instances of abuse: failing to serve within the timelines set by the Rules and by the Court; seeking a hearing date for a claim the Respondent did not know about; and seeking reinstatement of an abated claim while claiming it had been dismissed for non-attendance. On this basis the review application was declined, the claim deemed abated and the file closed.

p. 3

Legal principles established

#
  • A claim that abates by operation of a court order for non-service of summons and pleadings cannot be reinstated on a false premise that it was dismissed for non-attendance.
  • Filing a claim and failing to serve within timelines given by the Rules and by the Court, and seeking reinstatement of an abated claim on false premises, constitutes abuse of court process.

Court orders

#
  1. 1.The application filed by the Claimant dated 16th September 2024 is declined.
  2. 2.The Claim shall be deemed to have abated, as earlier ordered in the year 2020.
  3. 3.The file shall be marked as closed.
  4. 4.No order on the costs.

The bench

#

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

JR
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the E&LRC (Procedure) Rules, 2016

Relief refused

#

Review and setting aside of the orders of 3rd March 2020 and reinstatement of the Claim for full hearing

The Claim abated for non-service, was never dismissed, and the Claimant's explanation was implausible and amounted to abuse of court process.

p. 3

Costs

No order on the 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 application filed by the Claimant dated 16th September 2024 is declined.
p. 3final orders - dismissal of review application
The Claim shall be deemed to have abated, as earlier ordered in the year 2020.
p. 3final orders - abatement affirmed
The Claim was not dismissed for non-attendance or non-prosecution; it abated for non-service of the Notice of Summons and the Statement of Claim.
p. 2distinction between dismissal and abatement
The file shall be marked as closed.
p. 3final orders - closure of file

Issues in the judgment

#
minor

The judgment states the Claim was mentioned on '30th January 2029', which is evidently a typographical error for 30th January 2020, consistent with the rest of the chronology.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wanyembi v Council, University of Kabianga (Cause 50 of 2019) [2025] KEELRC 1172 (KLR)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1172/eng@2025-04-25

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