Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRC application dated 7th June, 2023 (suit filed 9th October, 2017)· [2023] KEELRC 2859 (KLR)

Mutinda v Bollore Africa Logistics Limited (Cause 2014 of 2017) [2023] KEELRC 2859 (KLR)

Employment and Labour Relations Court
9 November 2023
JGJacob Gakeri
2,487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to reinstate a 2017 employment suit dismissed for delay, because the claimant gave no real explanation beyond blaming his former lawyer.

What this practically means

#

Executive summary

#
The Claimant, Martin Kyule Mutinda, moved the Employment and Labour Relations Court at Nairobi by a Notice of Motion dated 7th June 2023 under Order 12 Rule 7 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, seeking to set aside the dismissal of his 2017 suit for want of prosecution and to have it reinstated. He blamed his former advocates, Gathima Kioi & Co. Advocates, for failing to schedule a hearing and to inform him of the notice to show cause, and said he only learnt of the dismissal when his new counsel perused the file. The Respondent opposed, terming the application an afterthought, noting the suit lay dormant for years, dismissal occurred on 27th January 2022 and the application came over 15 months later, with witnesses having left its employment. Gakeri J identified a single issue: whether the application was merited. Reviewing the record, the court found neither counsel nor claimant took any step from December 2018 to June 2023. While mistakes of counsel should ordinarily not be visited on a client, the court applied the Court of Appeal's qualification in Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio that errors will not excuse a client where they are negligent and uncorrected, and the Ivita v Kyumbu requirement of a satisfactory excuse for delay. The applicant adduced no evidence of pursuing his former counsel or of when he learnt of the dismissal. The delay was held inordinate and inexcusable and reinstatement would prejudice the Respondent, which had consistently attended court. The application was dismissed with no orders as to costs on 9th November 2023.

Key legal issues

#
01

Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated

Holding

The application was unmerited because the applicant offered no explanation for the inordinate and inexcusable delay of almost 4½ years of inaction and did not demonstrate diligence in pursuing his former counsel

Reasoning

The court traced the record showing no step taken by either side from December 2018 until the suo motu notice to show cause in late 2021, and dismissal on 27th January 2022. The application was filed over 15 months later. While mistakes of counsel ordinarily should not be visited on a client, the Court of Appeal qualifies this where errors are negligent and unexplained. The applicant adduced no evidence of pursuing his former counsel, so reinstatement would prejudice the Respondent who had consistently attended court.

p. 5

Legal principles established

#
  • Mistakes of counsel are not automatically excused; the client must show the errors were not negligent and that effort was made to correct them, per the Court of Appeal in Tana and Athi Rivers Development Authority V Jeremiah Kimigho Mwakio & 3 others
  • Even prolonged delay will not lead to dismissal if the plaintiff offers a satisfactory excuse and justice can still be done (Ivita v Kyumbu test)

Court orders

#
  1. 1.The applicant's Notice of Motion dated 7th June, 2023 is dismissed with no orders as to costs

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 17 Rule 2(1)
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1B
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 16
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (13)

  • Fran Investment Ltd V G4S Security Services Ltd
    (2015) eKLR
  • Ivita V Kyumbu
    (1984) KLR 441
  • Mugure Mahinda V Ali Mohammed Farah
    (2016) eKLR
  • Lee Muthoga V Habib Zurich Finance (K) Ltd
  • Maina V Mugiria
    (1983) KLR
  • Joseph Njuguna Muniu V Medicino Gionvanni
    (1998) eKLR
  • Thathini Development Co. Ltd V Mombasa Water & Sewerage Co. Ltd
    (2022) eKLR
  • Savings and Loans Ltd V Susan Wanjiru Muritu
  • London Distillers (K) Ltd V Phillip Kipchirchir & 2 others
    (2007) eKLR
  • CFC Stanbic Ltd V John Maina Githaiga & another
    (2013) eKLR
  • Tana and Athi Rivers Development Authority V Jeremiah Kimigho Mwakio & 3 others
    (2015) eKLR
  • Ketteman & others V Hansel Properties Ltd
    (1988) 1 ALL ER 38
  • Charles Maina Muriuki V Jamleck Muchira Wanjau
    (2014) eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mutinda v Bollore Africa Logistics Limited (Cause 2014 of 2017) [2023] KEELRC 2859 (KLR)", Case Analysis (2023). ELRC application dated 7th June, 2023 (suit filed 9th October, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2859/eng@2023-11-09

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