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ELCPartially AllowedNot stated in judgment (Ruling on Notice of Motion dated 17/2/25)· [2025] KEELC 4323 (KLR)

Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan (Miscellaneous Application E202 of 2022) [2025] KEELC 4323 (KLR)

Employment and Labour Relations Court
29 May 2025
JKJ. G. Kemei
1,269 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, through counsel Ms Fatma Juma of Khatib & Company Advocates, moved the court by notice of motion dated 17/2/25 seeking stay of proceedings relating to the taxation of a Bill of Costs dated 23/9/22, setting aside of the court's orders of 10/2/25 dismissing the applicant's application dated 23/1/24 for non-attendance, and costs. The applicant explained that on the hearing date counsel was appearing before another court in ELRC Misc No E103 of 2024 and by the time she attended, the matter had been dismissed; she attributed the non-attendance to a mistake of counsel which should not be visited on an innocent client. The respondent opposed through the affidavit of Mohamed Ferhan Chaudhri, arguing that non-attendance was a serious lapse (citing Tropical Commodities Ltd v Kenya Commercial Bank) and that the filing of successive stay applications was an abuse of process (citing The Attorney General v J R K). The court identified a single issue: whether the application was merited. It set out the governing law under Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules and the principles from Nagle v Fielden and Birkett v James. Finding the application timeously filed and accepting that justice could still be done by hearing the earlier application on its merits, the court relied on Banco Arabe Espanol v Bank of Uganda and allowed the application but on terms: throw-away costs of Kshs 20,000/- to the respondent within 15 days, failing which the orders lapse automatically, and the applicant to fix the application dated 23/1/25 for hearing expeditiously.

Key legal issues

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01

Whether the order of 10/2/25 dismissing the application dated 23/1/24 for non-attendance should be set aside

Holding

Yes, the dismissal was set aside but on terms, since the application was brought timeously and justice can still be done by hearing the earlier application on its merits

Reasoning

The court applied Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules and the principles in Nagle v Fielden and Birkett v James. Although counsel's non-attendance was an administrative lapse that 'should not be tolerated', the application to set aside was filed within a week of the dismissal and was therefore timeous. Adopting Banco Arabe Espanol v Bank of Uganda, the court held that disputes should be decided on their merits rather than hindered, subject to compensating the respondent with throw-away costs.

p. 3

Legal principles established

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  • The administration of justice ordinarily requires that disputes be decided on their merits and that lapses should not necessarily debar a litigant

Court orders

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  1. 1.The application dated 17/2/25 is allowed but on terms
  2. 2.The applicant shall pay throw away costs of Kshs 20,000/- to the Respondent within the next 15 days
  3. 3.In default of payment, the orders granted shall lapse automatically
  4. 4.The applicant to fix the application dated 23/1/25 for hearing expeditiously

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12, rule 7
  • Civil Procedure Rules, 2010Order 51, rule 15

Cases cited (5)

  • Tropical Commodities Ltd Vs Kenya Commercial Bank Limited
    (2009)
  • The Attorney General VS J R K
    (2009)
  • Nagle V Fielden
    [1966] 2 QBD 633
  • Birket Vs James
    [1978] A.C. 297
  • Banco Arabe Espanol V Bank of Uganda
    [1999] 2 EA 22
Jurisdiction invoked
Inherent powers and Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules, 2010

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, "Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan (Miscellaneous Application E202 of 2022) [2025] KEELC 4323 (KLR)", Case Analysis (2025). Not stated in judgment (Ruling on Notice of Motion dated 17/2/25). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4323/eng@2025-05-29

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