Mwangi v Garissa & another (Employment and Labour Relations Cause 176 of 2017) [2025] KEELRC 103 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a suit dismissed for want of prosecution should be reinstated despite an inordinate 3-year delay in seeking reinstatement
The application was allowed: despite inordinate delay and laches, the mistake of the advocate entitled the applicant to a second opportunity, conditioned on payment of throwaway costs
The court acknowledged the applicant was guilty of laches and went to slumber for 3 years post-dismissal. It was nonetheless persuaded by the broad equity approach in Philip Chemowolo v Augustine Kubede as adopted in Richard Ncharpi Leiyagu, that blunders should not permanently deprive a party of a hearing. The right to a hearing is a well-protected constitutional right and the cornerstone of the rule of law. However, consequences were imposed: throwaway costs of Kshs. 30,000/- to compensate the respondent, higher than in cases without inordinate delay, failing which reinstatement lapses automatically.
The court's power to impose terms on reinstatement of a suit dismissed for non-attendance
Under Order 12 Rule 7 of the Civil Procedure Rules the court may set aside or vary a dismissal upon such terms as may be just
The court cited Order 12 Rule 7 of the Civil Procedure Rules, which permits the court, on application, to set aside or vary a judgment or dismissal order upon such terms as may be just. This statutory discretion was the vehicle for conditioning reinstatement on throwaway costs. The court also noted Section 20 of the Employment and Labour Relations Court Act requiring the court to act without undue regard to technicalities, and corrected the applicant's reference from 'Section 17' to 'Rule 17' of the ELRC Procedure Rules 2016, which concerns interim orders.
Legal principles established
#- The broad equity approach: unless there is fraud or intention to overreach, an error or default can be put right by payment of costs, because courts exist to decide rights, not to impose discipline
- A litigant bears primary responsibility for prosecuting their own suit; the advocate is merely a medium, and mistake of advocate may nonetheless entitle a litigant to a second opportunity on terms
- Reinstatement of a suit dismissed for want of prosecution may be granted on terms, including throwaway costs to compensate the respondent, with inordinate unjustified delay attracting higher costs
Court orders
#- 1.The application for reinstatement of the claim dated 27th January 2017 is allowed
- 2.Reinstatement conditional on payment by the Claimant to the Respondent of throwaway costs of Kshs. 30,000/- within 30 days, in default of which the reinstatement order shall lapse automatically
- 3.Mention on 19th February 2025 to confirm compliance and for directions
- Jurisdiction invoked
- Article 159 of the Constitution and Section 17 (correctly Rule 17) of the Employment and Labour Relations Court (Procedure) Rules 2016; Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Machel v Lake Gas Ltd (Cause E002 of 2024) [2026] KEMC 449 (KLR)[2026] KEMC 449 (KLR)30 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Mwangi v Garissa & another (Employment and Labour Relations Cause 176 of 2017) [2025] KEELRC 103 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/103/eng@2025-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.