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ELRCDismissedNot stated in judgment· [2025] KEELRC 1869 (KLR)

Kariuki t/a Direct Auctioneers v Sheracco Savings & Credit Society Limited & 2 others (Miscellaneous Application E024 of 2024) [2025] KEELRC 1869 (KLR)

High Court of Kenya, Employment and Labour Relations Court (sitting at Nakuru)
27 June 2025
JRJames Rika
451 words in judgment
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The bottom line

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A Kenyan court refused to reinstate a dismissed application because the party's lawyer repeatedly failed to show up, and repeated absence is not an excuse.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nakuru (James Rika, Judge) determined an application dated 19th March 2025 by the 2nd and 3rd Respondents seeking reinstatement of their earlier application dated 22nd January 2025. The earlier application had sought a stay of execution of the decree and the setting aside in its entirety of a Bill of Costs taxed in favour of the Applicant/Auctioneer. That application was dismissed on 4th March 2025 for non-attendance. The 2nd and 3rd Respondents explained that their Counsel failed to diarize the hearing date and argued that they should not be punished for their Counsel's error. The Applicant opposed through the affidavit of her Counsel, Naomi Muriithi, sworn on 24th April 2025, maintaining that the application was correctly dismissed. Parties agreed that the application be determined on the strength of affidavits and submissions. The Court reviewed the record and found a pattern: the 2nd and 3rd Respondents were absent on 1st October 2024 when the Taxing Officer delivered her ruling; their Counsel did not attend on 11th December 2024 when an application to adopt the certificate of costs as a decree was allowed un-opposed; and they again failed to attend on 4th March 2025 despite the Applicant's Counsel being ready to respond. The Court held the absence was the third instance, in keeping with the Respondents' past practice, and was neither inadvertent nor excusable but an established practice and pattern. The application dated 19th March 2025 was declined, with costs awarded to the Applicant/Auctioneer. Judgment delivered electronically at Nakuru on 27th June 2025.

Key legal issues

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Whether the dismissal of the application dated 22nd January 2025 for non-attendance should be set aside and the application reinstated.

Holding

The application for reinstatement was declined. The Court found that the 2nd and 3rd Respondents' non-attendance on 4th March 2025 was the third instance of absence and formed an established practice and pattern, and was therefore neither inadvertent nor excusable.

Reasoning

The Court reviewed the record and found that the 2nd and 3rd Respondents and their Counsel had previously failed to attend Court on 1st October 2024 (when the Taxing Officer delivered her ruling) and on 11th December 2024 (when the application for adoption of the certificate of costs was allowed un-opposed). Their absence on 4th March 2025 was therefore consistent with a past practice and pattern of non-attendance. The Court concluded that such non-attendance was neither inadvertent nor excusable and declined to reinstate the dismissed application.

p. 2

Legal principles established

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  • A party will not be reinstated where their non-attendance is part of an established pattern of non-attendance and is not inadvertent or excusable.

Court orders

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  1. 1.The application dated 19th March 2025 is declined.
  2. 2.Costs to the Applicant/Auctioneer.
Jurisdiction invoked
Inherent power of the Court over its own proceedings (not expressly stated in the judgment)

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, "Kariuki t/a Direct Auctioneers v Sheracco Savings & Credit Society Limited & 2 others (Miscellaneous Application E024 of 2024) [2025] KEELRC 1869 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1869/eng@2025-06-27

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