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ELRCPartially AllowedELRC Petition No. E071 of 2020· [2024] KEELRC 1282 (KLR)

Rege v Britam Life Assurance Co (Kenya) Ltd (Employment and Labour Relations Petition E071 of 2020) [2024] KEELRC 1282 (KLR)

Employment and Labour Relations Court
23 May 2024
MNMathews Nderi Nduma
2,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a dismissed employment petition because both parties had genuinely been trying to settle, but the delayed litigant still paid the costs.

What this practically means

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Executive summary

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The petitioner's suit, filed in 2020, was dismissed on 23/10/2023 for want of prosecution after neither the petitioner nor his advocates attended court. The petitioner, through new advocates (Majanja Luseno & Company), filed a notice of motion seeking leave for the new firm to come on record, setting aside the dismissal order, and reinstating the petition for priority hearing. He explained that his previous firm, Musyoki Mogaka & Company Advocates, kept him in the dark; he only learned of the dismissal when served with a statutory notice threatening to sell his charged property (LR 12715/6080), which was the subject of conservatory orders issued by Nduma J on 15/7/2021. The respondent opposed, alleging indolence, failure to follow up, failure to respond to mention notices and the notice to show cause, and prejudice from prolonged litigation. The court framed two issues: whether to set aside the dismissal, and costs. Reviewing the record, the court found that between 15/7/2021 and 27/9/2023 both parties were genuinely pursuing out-of-court settlement, and that absences occurred at mentions to record settlement. It noted that the respondent had never filed a substantive response to the petition. Applying Order 12 Rule 7, Article 159 of the Constitution and the overriding objective, and the Court of Appeal's guidance that litigants must not simply blame counsel, the court held that the delay was mutually caused and that reinstatement served the interest of justice. The dismissal was set aside, the petition reinstated with interim orders restored, but the applicant was ordered to bear the costs of the application.

Key legal issues

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01

Whether the dismissal of the petition for want of prosecution should be set aside

Holding

The court set aside the dismissal, finding the delay mutually caused by both parties' pursuit of out-of-court settlement and reinstating the petition with interim orders restored.

Reasoning

The court reviewed the record showing that from 15/7/2021 to 27/9/2023 both parties were engaged in a mutually agreed settlement process that stalled. Although the petitioner failed to personally follow up, the absence from court occurred during mentions to record settlement, and the respondent itself had never filed a substantive response to the petition. The dismissal order was permissive discretion under Order 12 Rule 7, guided by Article 159 and the overriding objective. In the interest of justice and fair play, the dismissal was set aside and the petition reinstated for priority hearing.

p. 5
02

Responsibility of a litigant for advocates' inaction

Holding

The court applied the principle that a party bears responsibility to follow up its case, but found special circumstances (mutual settlement efforts) excusing the petitioner's indolence.

Reasoning

Relying on Rejesh Rughani v Fifty Investments and Hebo Agency v Wilfred Odhiambo Musiya, the court acknowledged that the petitioner had not demonstrated meaningful personal steps to follow up the matter. However, the special circumstances - genuine mutual settlement engagement spanning over two years and the respondent's own failure to file a response - rendered the delay explainable and justified reinstatement rather than punishing the petitioner for his advocate's failures.

p. 5

Legal principles established

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  • Dismissing a suit without hearing it on merit is a draconian act to be checked against the constitutional demands of substantive justice and expeditious disposal under Article 159
  • A litigant cannot simply blame the advocate on record; parties must show interest in and follow up their case even when represented

Court orders

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  1. 1.The order of the court dated 23/10/2023 dismissing the petition for want of prosecution is set aside
  2. 2.The petition is reinstated together with the interim orders made by the court in its ruling dated 15/7/2021 and at the outset of the matter
  3. 3.The applicant to meet the costs of this application
  4. 4.The petition to be heard and determined expeditiously and on priority basis

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 159(2)
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (4)

  • Thatha Development Company Limited v Mombasa Water & Sewerage Company & Another
    [2022] eKLR
  • Investment Limited v G4s Security Services Limited
    [2015] eKLR
  • Rejesh Rughani v Fifty Investments Ltd & another
    [2016] eKLR
  • Hebo Agency Limited v Wilfred Odhiambo Musiya
    [2015] eKLR
Jurisdiction invoked
Inherent discretion under Order 12 Rule 7 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya

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, "Rege v Britam Life Assurance Co (Kenya) Ltd (Employment and Labour Relations Petition E071 of 2020) [2024] KEELRC 1282 (KLR)", Case Analysis (2024). ELRC Petition No. E071 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1282/eng@2024-05-23

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