Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2025] KEELRC 46 (KLR)

Kapule v Milly Class Works Limited (Cause 640 of 2016) [2025] KEELRC 46 (KLR)

Employment and Labour Relations Court
23 January 2025
MMM. Mbarũ
1,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to reinstate a case dismissed years earlier, ruling the claimant's unexplained delay and blame-shifting to advocates were no excuse.

What this practically means

#

Executive summary

#
The claimant, acting in person, applied by notice dated 9 August 2024 seeking review and setting aside of the orders of 15 June 2023 dismissing his claim (filed on 8 September 2016) for non-attendance, and reinstatement of the suit for hearing on merit. He blamed his former advocates, Barayan & Associates, who allegedly transferred the file to Mung'oma Advocates without his knowledge, leading to the dismissal of which he claimed ignorance. The respondent, through the Replying Affidavit of John Mwalyo, opposed the application, contending that the claimant had repeatedly failed to attend hearings, had changed advocates several times, and that the delay of over ten months (and effectively eight years) was inordinate and unexplained; further, the court was functus officio, having confirmed the dismissal in a ruling of 4 October 2023 on a prior application dated 15 June 2023. The court held that the same issues had already been addressed in the ruling of 4 October 2023 and that it could not revisit the matter absent reasonable cause. It further held that an in-person litigant remains bound by legal procedure and bears responsibility for following up on his case, that Article 50 does not excuse professional negligence by advocates, and that the claimant's proper remedy is an account or misconduct proceedings against his advocates. The court found no sufficient cause for reinstatement and dismissed the application with costs to the respondent.

Key legal issues

#
01

Whether the court is functus officio

Holding

The court had already addressed the identical issues in its ruling of 4 October 2023 confirming the dismissal; it could not revisit the matter.

Reasoning

The claimant's earlier application dated 15 June 2023, filed through Mung'oma Mung'oma & Company Advocates, sought reinstatement of the same dismissed suit. The ruling of 4 October 2023 addressed the same issues, so the court could not reopen them absent reasonable cause.

p. 3
02

Whether the claimant established sufficient cause for reinstatement

Holding

No. The claimant failed to account for his whereabouts over eight years, changed advocates repeatedly, and bore responsibility as the right-holder to follow up his case.

Reasoning

The court found the delay inordinate and unjustified. Changes of advocates did not remove the claimant's own responsibility to track his case; the negligence of advocates is a matter for a separate claim against them, not a basis for reinstatement. Article 159(2)(d) does not cure unexplained negligence.

p. 2
03

Whether the claimant has recourse against his advocates

Holding

Yes; he may pursue the advocates to render an account or address professional misconduct.

Reasoning

The claimant alleged his file was transferred to other advocates without his knowledge. The court held that where advocates failed to attend despite instructions, the claimant's remedy lies in holding the advocates accountable, not in repeatedly seeking reinstatement.

p. 2

Legal principles established

#
  • A litigant who acts in person is still bound by legal procedure and bears responsibility for following up on the progress of their case
  • The right to be heard under Article 50 of the Constitution does not excuse professional negligence by advocates
  • Once a court has addressed itself on a matter, it cannot revisit it unless there is reasonable cause

Court orders

#
  1. 1.The application dated 9 August 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (4)

  • Floris Pierro & Midland Company Limited v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza)
    [2014] KECA 827 (KLR)
  • John Elias Kirimi v Martin Maina Nderitu, City Council of Nairobi, Margaret Wanjiru Ngarachu, Commissioner of Lands & Attorney General
    [2019] KEELC 2380 (KLR)
  • Julius Mbaabu Marete v Tom Ayora, Nyeri Shuttle Limited, Kinyua Monicah & Mchezo Coaches Limited
    [2018] KEHC 5791 (KLR)
  • Kakunia v Ndung'u practising as Annie W Thoronjo & Co Advocates
    [2023] KEHC 17324 (KLR)
Jurisdiction invoked
Inherent powers of the court (Sections 1A, 1B and 3A of the Civil Procedure Act invoked on overriding objectives); review of the court's own orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kapule v Milly Class Works Limited (Cause 640 of 2016) [2025] KEELRC 46 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/46/eng@2025-01-23

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