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ELRCDismissedNotice of Motion dated 23rd July 2024 (in the Claimant's suit)· [2025] KEELRC 38 (KLR)

Wanjira v Hotel Ambasadeur (Miscellaneous Case 110 of 2014) [2025] KEELRC 38 (KLR)

Employment and Labour Relations Court
17 January 2025
SRStella Rutto
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, Catherine Milkhah Wanjira, moved the Court by Notice of Motion dated 23rd July 2024 seeking to set aside the orders of 3rd July 2024 dismissing her suit for want of prosecution and to reinstate the suit. She blamed her Advocate's non-attendance on the matter being on the cause list but never called out and dealt with administratively. The Respondent, through the Replying Affidavit of its Director John Kaguma Maina, opposed the application, contending that the Claimant had slept on her rights for close to ten years, failed to attend court on multiple occasions, and that the application was an abuse of process. In a Supplementary Affidavit the Claimant gave accounts of adjournments on various dates due to counsel's unavailability. The court framed a single issue: whether to set aside the dismissal orders and reinstate the suit. Applying Shah vs Mbogo, the court held the discretion must be exercised judiciously and the applicant must give sufficient and plausible reasons. The record showed the Claimant's last appearance was 16th December 2019, with no activity for almost four years; the Mention Notice and Notice to Show Cause were sent to her Advocate's disclosed email address and receipt was not denied; and no reason was given for absence on 12th June and 3rd July 2024. The court found the Claimant was not a diligent litigant and dismissed the application with no orders as to costs on 17th January 2025.

Key legal issues

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Whether to set aside dismissal of the suit for want of prosecution and reinstate the suit

Holding

The application was dismissed; the Claimant was a diligent-litigant standard case and offered no plausible reasons for four years of inaction and non-attendance at the mention and Notice to Show Cause.

Reasoning

The court traced the chronology: last appearance 16th December 2019; no activity until the Mention Notice of 5th June 2024 and Notice to Show Cause of 25th June 2024, both dispatched to the Advocate's disclosed email and not denied as received. The Claimant gave no reason for absence on 12th June and 3rd July 2024 nor for the four-year lapse. Applying Shah vs Mbogo, the discretion was not deserved; the conduct did not depict a diligent litigant.

p. 3

Legal principles established

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  • The discretion to set aside dismissal for want of prosecution must be exercised judiciously, to avoid injustice from inadvertence or excusable mistake, and the applicant must adduce sufficient and plausible reasons

Court orders

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  1. 1.The Application dated 23rd July 2024 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (1)

  • Shah vs Mbogo
    (1979) EA 116
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders (reinstatement of suit dismissed for want of prosecution); Civil Procedure Act Section 1B and Article 159(2)(d) of the Constitution referenced

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, "Wanjira v Hotel Ambasadeur (Miscellaneous Case 110 of 2014) [2025] KEELRC 38 (KLR)", Case Analysis (2025). Notice of Motion dated 23rd July 2024 (in the Claimant's suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/38/eng@2025-01-17

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