Chaudhri & Associates v egistered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan (Miscellaneous Application E204 of 2022) [2025] KEELC 4325 (KLR)

Employment and Labour Relations Court (inferred; the judgment does not state the court on its face)

29 May 2025

JKJ. G. Kemei

1,268 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~5 min to read original · ~4 min brief

The bottom line

A Kenyan court reinstated a dismissed case but only because the lawyer's client paid Kshs 20,000 in costs within 15 days — reinstatement is never free.

What this practically means

Executive summary

The applicant, through counsel Ms Fatma Juma of Khatib & Company Advocates, moved the court by a motion dated 17/2/25 seeking a stay of proceedings relating to the taxation of a Bill of Costs dated 23/9/22, setting aside of the orders of 10/2/25 dismissing the applicant's earlier application dated 23/1/24 for non-attendance, and costs. Counsel explained that on the hearing date she 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, through Mohamed Ferhan Chaudhri, opposed the application, relying on Tropical Commodities Ltd v Kenya Commercial Bank Ltd and Attorney General v J R K to argue that non-attendance is a serious lapse, that the applicant had filed multiple successive applications amounting to abuse of process, and that the respondent was entitled to expeditious taxation. The court identified a single issue: whether the application was merited. It applied Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules, the principles in Nagle v Fielden and Birket v James, and the dictum in Banco Arabe Espanol v Bank of Uganda. It found the application brought timeously, acknowledged counsel owned up to the mistake, but censured administrative lapses in advocates' offices and recognised the respondent's prejudice. Balancing these factors, the court allowed the application but on terms: throw away costs of Kshs 20,000/- payable within 15 days, automatic lapse of the orders on default, and directions to fix the underlying application expeditiously.

Key legal issues

Whether the ex parte dismissal of the applicant's application dated 23/1/24 should be set aside

Holding

The court set aside the dismissal but on terms, imposing throw away costs of Kshs 20,000/- with an automatic lapse provision on default, reasoning that justice is best served by hearing the matter on its merits.

Reasoning

The court applied Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules and the guiding principles from Nagle v Fielden and Birket v James on delay and prejudice. It found the application brought timeously, noted counsel owned up to the mistake by swearing the affidavit, but censured administrative lapses in advocates' offices. Balancing the respondent's prejudice against the overriding objective, and adopting Banco Arabe Espanol v Bank of Uganda, it held the dispute should be heard on merits, subject to compensating the respondent with throw away costs.

p. 3

Legal principles established

Where judgment has been entered or a suit dismissed, the court may set aside or vary the judgment or order upon such terms as may be just
The administration of justice requires that disputes be decided on their merits and that errors or lapses should not necessarily debar a litigant

Court orders

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

Authorities

Legislation

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

Cases cited (4)

Tropical Commodities Ltd v Kenya Commercial Bank Limited
(2009)
Nagle v Fielden
[1966] 2 QBD 633
Birket v James
[1978] A.C. 297
Banco Arabe Espanol v Bank of Uganda
[1999] 2 EA 22

Jurisdiction invoked: Inherent jurisdiction to set aside ex parte orders under Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Chaudhri & Associates v egistered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan (Miscellaneous Application E204 of 2022) [2025] KEELC 4325 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4325/eng@2025-05-29

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