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ELRCAllowedNot stated in the judgment text provided· [2025] KEELRC 103 (KLR)

Mwangi v Garissa & another (Employment and Labour Relations Cause 176 of 2017) [2025] KEELRC 103 (KLR)

Employment and Labour Relations Court
22 January 2025
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Nairobi on an application dated 15th July 2024 seeking reinstatement of a claim filed on 27th January 2017 and dismissed for want of prosecution on 27th October 2021. The applicant, Pascalina Nthenya Mwangi, explained the delay by attributing it to her former advocate, who failed to update her on the matter and merely advised that out-of-court negotiations were ongoing; she only discovered the dismissal when her new advocates, Lestins & Smith Advocates, perused the court file. The respondent opposed, arguing that the 3-year delay was inordinate, that the applicant had a primary duty to progress her own case, and that equity aids the vigilant and not the indolent. The court framed a single issue: whether the application was merited. It corrected the applicant's citation of 'Section 17' to Rule 17 of the ELRC (Procedure) Rules 2016 and invoked Order 12 Rule 7 of the Civil Procedure Rules, which permits setting aside a dismissal on just terms. Although the court found the applicant guilty of laches and unsatisfied with her explanation, it was persuaded by the broad equity approach in Philip Chemowolo v Augustine Kubede as adopted in Richard Ncharpi Leiyagu, holding that the mistake of an advocate should not permanently deprive a litigant of her constitutional right to a hearing. Distinguishing its earlier decision in Kenya Union of Sugar Plantation & Allied Workers v Busia Sugar Industries, the court held the inordinate unjustified delay warranted higher throwaway costs. The application was allowed on condition that the claimant pay the respondent throwaway costs of Kshs. 30,000/- within 30 days, failing which the reinstatement order lapses automatically. Mention was set for 19th February 2025, with costs of the application in the cause.

Key legal issues

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01

Whether a suit dismissed for want of prosecution should be reinstated despite an inordinate 3-year delay in seeking reinstatement

Holding

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

Reasoning

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.

p. 3
02

The court's power to impose terms on reinstatement of a suit dismissed for non-attendance

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application for reinstatement of the claim dated 27th January 2017 is allowed
  2. 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. 3.Mention on 19th February 2025 to confirm compliance and for directions

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17 (referred to by applicant as Section 17)
  • Employment and Labour Relations Court ActSection 20
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (4)

  • Kenya Union of Sugar Planation & Allied Workers v Busia Sugar Industries Limited
    (Cause 56 of 2021) [2022] KEELRC 13365 (KLR) (2 December 2022) (Ruling)
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    [2013] eKLR
  • Philip Chemowolo & another v Augustine Kubede
    [1982-88] KAR 103 at 1040
  • Mobile Kitale Service Station v Mobil Oil Kenya Limited & another
    (2004)
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.