Frankline Jb Chabari v Tharaka Nithi County Government & 1 other
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a party should be penalised for an inadvertent mistake of counsel in failing to attend a hearing
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.
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.
Whether the ELRC misdirected itself in dismissing the claim for non-attendance
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.
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.
Legal principles established
#- 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
#- 1.The ruling and orders of the ELRC dated 4th October 2019 are set aside
- 2.The application dated 6th February 2019 is allowed
- 3.The appellant's memorandum of claim is reinstated
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ibrahim v Chiko (Sued as the Administrator of the Estate of Philip Mwadzoya Chiko – Deceased) (Environment and Land Case E145 of 2025) [2026] KEMC 791 (KLR)[2026] KEMC 791 (KLR)27 Aug 2026
- Ibrahim v Chiko (Sued as the Administrator of the Estate of Philip Mwadzoya Chiko – Deceased) (Environment and Land Case E145 of 2025) [2026] KEMC 791 (KLR)[2026] KEMC 791 (KLR)27 Aug 2026applied
Cite this brief
#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.