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ELRCDismissedIndustrial Cause No. 704 of 2015· [2025] KEELRC 141 (KLR)

Ayiega v Falcon Signs Limited (Cause 704 of 2015) [2025] KEELRC 141 (KLR)

Employment and Labour Relations Court
30 January 2025
RSRadido Stephen
467 words in judgment
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The bottom line

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A Kenyan court refused to revive a five-year-old dismissed employment case because the claimant offered no explanation for the long delay.

What this practically means

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Executive summary

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The Claimant sued Falcon Signs Ltd on 28 April 2015 for unfair termination of employment and breach of contract. The Respondent never entered appearance despite service, and on 21 March 2019 the Cause was set for formal proof. When the Cause was called on 24 October 2019 neither the Claimant nor his advocate attended, and the Court dismissed it for non-attendance. On 5 June 2024 the Claimant filed a Motion dated 12 March 2024 seeking to lift or set aside the dismissal, reinstate the Cause, or in the alternative reinstate it and transfer it to the Subordinate Court pursuant to Gazette Notice Number 6024, with costs. He argued that the dismissal occurred during COVID-19 movement restrictions, that triable issues existed, and that no prejudice would befall the Respondent. The Respondent did not participate. The Court took brief oral submissions from the Claimant on 18 November 2024 and considered the Motion, supporting affidavit and submissions. Applying the principles in Mbogo v Shah (1979) EA 116, the Court held that the discretion to set aside exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who delay justice. The Motion came more than five years after the dismissal, and the Claimant neither disclosed when he learnt of the dismissal nor explained the delay. The Court found he had not satisfied it that the discretion should be exercised in his favour, and dismissed the Motion with costs in the cause on 30 January 2025.

Key legal issues

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01

Whether the delay of over five years in applying to set aside the dismissal of the Cause was excusable

Holding

The application was dismissed because the Claimant did not explain the delay or disclose when he learnt of the dismissal.

Reasoning

The Court invoked the principles in Mbogo v Shah, that the discretion to set aside is meant to relieve against accident, inadvertence or excusable mistake, not to assist those who delay justice. The Cause was dismissed on 24 October 2019 and the Motion filed on 5 June 2024, over five years later. The Claimant did not disclose when he learnt of the dismissal nor attempt to explain the delay, and was therefore not entitled to the discretionary relief sought.

p. 2

Legal principles established

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  • The discretion to reinstate a suit dismissed for non-attendance is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately obstructed or delayed justice.

Court orders

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  1. 1.The Motion dated 12 March 2024 is dismissed with costs in the cause
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to reinstate a suit dismissed for non-attendance

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, "Ayiega v Falcon Signs Limited (Cause 704 of 2015) [2025] KEELRC 141 (KLR)", Case Analysis (2025). Industrial Cause No. 704 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/141/eng@2025-01-30

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