Mbogo v Kenya Re-Insurance Corporation Limited (Cause 63 of 2011) [2023] KEELRC 1315 (KLR)
The bottom line
#Kenya's Employment Court refused to revive a 12-year-old employment claim dismissed for inaction, confirming courts will not excuse unexplained delays.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in prosecuting the claim was explained and excusable
The delay was not excusable; the claimant offered no valid explanation and the suit was properly dismissed for want of prosecution
The court found the suit was last in court on 4th June 2013 and dismissed on 19th April 2016 after over 2½ years of inaction. The Covid-19 pandemic postdated the dismissal and could not explain it, especially since the former Chief Justice enabled virtual court attendance. The alleged transfer from the Industrial Court was factually wrong since no file transfers occurred during the 2012 transition. The notice to show cause was issued in March 2016, both parties were absent, and no explanation was offered.
Whether the discretion to set aside dismissal of a suit should be exercised in the claimant's favour
The judicial discretion must be exercised on fixed principles, not sympathy, and the claimant failed to demonstrate an excusable mistake warranting reinstatement
Adopting CMC Holdings Ltd v James Mumo Nzioka, the court accepted that discretion should not turn its back on a litigant showing excusable mistake or error, but found the claimant's explanations (parallel proceedings, out-of-court negotiations, Covid-19, transition of courts) unconvincing. The claimant and respondent were both absent at the notice to show cause, so no explanation was offered at the time.
Legal principles established
#- A court will not turn its back on a litigant who demonstrates an excusable mistake, inadvertence, accident or error when exercising discretion to set aside an ex parte order or dismissal
- Where no step is taken in a suit for one year, the court may give notice to show cause why the suit should not be dismissed, and may dismiss it if no cause is shown
Court orders
#- 1.The Notice of Motion dated 3rd April 2023 seeking reinstatement of the claim is dismissed
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Rule 17 of the Employment & Labour Relations Court (Procedure) Rules 2016 (jurisdiction to set aside dismissal of suit for want of prosecution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogo v Kenya Re-Insurance Corporation Limited (Cause 63 of 2011) [2023] KEELRC 1315 (KLR)", Case Analysis (2023). Not stated in the judgment (Claim filed 19th January 2011 by Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1315/eng@2023-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.