Mutinda v Kenol Kobil Limited (Cause 404 of 2018) [2025] KEELRC 517 (KLR)
The bottom line
#Kenya's Employment Court refused to reinstate a lawsuit dismissed after four years of inaction, warning that claimants must actively pursue their cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant presented justifiable reasons to warrant reinstatement of the suit dismissed for want of prosecution on 2nd October, 2023
- 2.Whether granting the orders sought would be prejudicial to the Respondent
Key legal issues
#Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated
The application for reinstatement was without merit; the Claimant did not explain the delay in prosecuting the suit or the delay in moving the court after dismissal, and reinstatement would prejudice the Respondent.
The court traced the record showing inaction from June 2019 to 2023, non-attendance on 2nd October 2023 citing connectivity issues, and failure to peruse the court file or move promptly after dismissal. Applying Ivita v Kyumbu and the reinstatement principles in Stephen Ndichu v Monty's Wines and Spirits Ltd, the court found the delay prolonged and inexcusable, that the claimant had seemingly lost interest, and that reinstatement of a 2018 case seven years later would offend the avoidance of delay in justice under Article 159(2)(b) and prejudice the Respondent.
The applicable statutory framework for dismissal of suits for want of prosecution in the ELRC
Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 governs dismissal of suits for want of prosecution, permitting the court to act suo moto or on application by a party where no action is taken within one year.
The court set out Rule 43(1)-(4) of the 2024 Procedure Rules, noting the court may give notice to parties to show cause why the suit should not be dismissed after one year of inaction, may dismiss for non-compliance, and that any party may apply for dismissal. The over four years of inaction from June 2019 to May 2023 fell squarely within this rule.
Legal principles established
#- The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless be done despite the delay.
- Reinstatement of a suit after dismissal is discretionary and must be exercised judiciously to do justice to both parties, considering the reason for failure to attend and whether the plaintiff can be compensated by costs.
- It is the sole duty of the plaintiff to take all necessary steps to ensure the expeditious disposal of his claim and he should not be guilty of laches.
Court orders
#- 1.The application dated 2nd February, 2024 seeking reinstatement of the suit is dismissed
- 2.Costs of the application to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159(2)(a)-(d) and 50(1) of the Constitution; Sections 1, 1A, 1B, 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Relief refused
#Vacating the dismissal order of 2nd October, 2023 and reinstating the suit for hearing on merit
The Claimant failed to explain over four years of inaction in prosecuting the suit, did not act promptly after the dismissal, and reinstatement would prejudice the Respondent and delay justice
Costs
The Application is therefore found without merit and is hereby dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Application is therefore found without merit and is hereby dismissed with costs.
It is so ordered.
The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay.
the Claimant has not ably explained the delay in prosecuting this matter and it will only serve prejudice to the Respondent if a 2018 case is still going to hang on their shoulders seven years after
it is sole duty of the Plaintifi or the Appellant as the case may be, seeking remedy to take all necessary steps at his/her disposal to ensure just and expeditious disposal of its his/her claim
Issues in the judgment
#The Respondent's name is never given in the judgment; the parties are referred to only as 'the Respondent', and the Respondent's replying affidavit is sworn by 'Ruth Mabele the Respondent's General counsel'.
Contradiction in the record: the Applicant avers his counsel filed written submissions on 08.12.2023 per court directives and that a further mention was slated for 22.01.2024 to confirm compliance, but the court records that on 6th November 2023 parties were allocated a mention date 'without any other directions on filing of submissions or anything'.
Inconsistent date in the record: paragraph 23 states the Respondent's application was slated for hearing on 29th June, 2023, while paragraph 3 and the chronology indicate it was heard on 13th July, 2023.
The Applicant's submissions are described as both dated 8th November, 2024 and (in the Applicant's affidavit) filed on 08.12.2023.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutinda v Kenol Kobil Limited (Cause 404 of 2018) [2025] KEELRC 517 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 2nd February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/517/eng@2025-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.