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Court of AppealPartially AllowedCivil Appeal (Memorandum of Appeal dated 5th November 2019)· [2025] KECA 558 (KLR)

Frankline Jb Chabari v Tharaka Nithi County Government & 1 other

Court of Appeal of Kenya
28 March 2025
2,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated an employee's case dismissed after his lawyer missed a hearing, ruling a client shouldn't pay for an honest mistake.

What this practically means

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Executive summary

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This Court of Appeal (Nyeri) allowed an appeal against a ruling of the ELRC (Nzioki Wa Makau, J.) dated 4th October 2019, which had refused to reinstate the appellant's claim after it was dismissed for non-attendance on 6th February 2019. The appellant, formerly Director - Urban Development at Tharaka Nithi County, had challenged the revocation of his appointment as violating Article 236(b) of the Constitution. On the hearing date, counsel holding brief allegedly miscommunicated the hearing time as 11.30 a.m. instead of 9.30 a.m., and the claim was dismissed with costs. The ELRC declined to reinstate, finding the absence unexplained and faulting the absence of an affidavit from the holding counsel. The Court of Appeal, applying its limited scope for interfering with discretionary decisions (Shah vs Mbogo), held that the mistake of counsel should not be visited upon an innocent litigant, relying on Chemwolo, Belinda Murai and Leiyagu. It found that counsel's conduct - sending holding counsel, filing the reinstatement application the same day, and following up on the listing - evidenced vigilance rather than an intent to derail the hearing. The Court held the ELRC misdirected itself and denied the appellant the right to be heard. It set aside the ruling, allowed the reinstatement application, reinstated the memorandum of claim, and ordered that costs of the appeal be borne by the appellant. The judgment binds lower courts on the principles governing excusable mistakes of counsel and reinstatement of suits dismissed for non-attendance.

Key legal issues

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01

Whether a party should be penalised for an inadvertent mistake of counsel in failing to attend a hearing

Holding

It is a long-standing principle that the mistake of counsel should not be visited upon an innocent litigant; unless there is fraud or intention to overreach, no error or default cannot be put right by payment of costs.

Reasoning

The Court relied on Chemwolo, Belinda Murai and Leiyagu to hold that blunders of counsel, absent fraud or intent to overreach, should be rectified in the interests of justice. Article 50(1) and the Oxygen Principles (Sections 1A and 1B of the Civil Procedure Act) favour substantive justice over technicalities. However, the discretion is not automatic: the court must examine the conduct of the party seeking indulgence, and counsel owes a duty of candour to the administration of justice.

p. 4
02

Whether the ELRC misdirected itself in dismissing the claim for non-attendance

Holding

The ELRC misdirected itself in the exercise of its discretion by declining to reinstate the claim, thereby denying the appellant the right to be heard; counsel's conduct showed vigilance and intent to prosecute the claim.

Reasoning

Counsel had sent another advocate to hold his brief and take a hearing date, filed the reinstatement application on the very day of dismissal, and followed up to learn the listing time. The mistake was an honest confusion over whether the hearing was at 9.30 a.m. or 11.30 a.m., not an attempt to derail the hearing. Equity therefore came to the aid of the vigilant, and the claim was reinstated so it could be heard on merit.

p. 5

Legal principles established

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  • An appellate court will only interfere with the judicial discretion of a lower court if it misapprehended the facts, misdirected itself in law, took into account matters it should not have, failed to take into account considerations it should have, or its decision was plainly wrong
  • The mistake of counsel should not be visited upon an innocent litigant, but the exercise of the discretion to excuse such a mistake is not automatic and the court must examine the conduct of the party

Court orders

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  1. 1.The ruling and orders of the ELRC dated 4th October 2019 are set aside
  2. 2.The application dated 6th February 2019 is allowed
  3. 3.The appellant's memorandum of claim is reinstated
  4. 4.Costs of the appeal shall be borne by the appellant
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
First appellate jurisdiction over the ELRC (appeal against ruling and order of 4th October 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Frankline Jb Chabari v Tharaka Nithi County Government & 1 other", Case Analysis (2025). Civil Appeal (Memorandum of Appeal dated 5th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/558/eng@2025-03-28

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