Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Claimant's Notice of Motion dated 26th February 2025)· [2025] KEELRC 2473 (KLR)

Mutia v Cadbury Kenya Limited (Cause 479 of 2018) [2025] KEELRC 2473 (KLR)

Employment and Labour Relations Court
19 September 2025
SRSTELLA RUTTO
2,543 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to reinstate a suit dismissed for non-attendance, holding a claimant who sleeps on their case for years gets no sympathy.

What this practically means

#

Executive summary

#
The Claimant filed a Notice of Motion dated 26th February 2025 seeking review and setting aside of orders dismissing his suit for non-attendance on 25th February 2025, and reinstatement of the suit, with costs in the cause. The application was supported by an affidavit of his counsel, Kassimu Evans Muthangya, who attributed the non-attendance to procedural and administrative challenges: a missing court file, a mismatch between the case number and parties on the Judiciary Case Tracking System, the transfer of the main file to a miscellaneous matter for costs assessment, and a breakdown in communication following changes in legal representation. It was also asserted that neither the Claimant nor his advocates were served with the Notice to Show Cause. The Respondent opposed through Grounds of Opposition, contending that no satisfactory explanation for non-attendance was offered, that the Claimant had taken no substantive steps to prosecute the suit since filing in 2018, that changes of advocates appeared calculated to delay, and that the Claimant was guilty of laches and inordinate delay. The court framed a single issue: whether to exercise discretion in favour of the Claimant and set aside the dismissal. Applying Alex Wainana, Shah v Mbogo and Ivita v Kyumbu, the court held that the discretion must be exercised judiciously. The Notice to Show Cause had been dispatched to the Claimant's personal email, which he never disowned; his former advocates ceased acting in his presence in January 2023; the letters evidencing follow-up were not traceable on the record; and the matter had come up for mention five times with no party attending. The court found no valid reason to set aside the dismissal, noting the Claimant bore sole responsibility to prosecute his suit. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Whether the dismissal of the suit for non-attendance should be set aside and the suit reinstated

Holding

The application was dismissed; the Claimant failed to give a valid, excusable explanation for the delay and non-attendance, and the Notice to Show Cause was properly dispatched to his personal email address.

Reasoning

The court held that reinstatement is discretionary but must be exercised judiciously. The Notice to Show Cause was emailed to the Claimant's personal address, which he did not disown. His former advocates ceased acting in January 2023 in his presence, and for nearly two years he took no substantiated steps to progress the suit. Five mentions passed with no attendance. The Claimant bore sole responsibility to prosecute his own suit and moved only after dismissal.

p. 5
02

Whether the Claimant's right to be heard was violated by the dismissal

Holding

No; the Claimant was afforded an opportunity to be heard since the Notice to Show Cause was dispatched to his personal email address.

Reasoning

The court acknowledged the constitutional right to be heard before an adverse decision, but found it satisfied here because service was effected electronically on the Claimant's own email, which he never disowned by affidavit. His current advocates had not formally come on record by Notice of Appointment, explaining the mode of service. The Claimant only acted in haste after dismissal.

p. 5

Legal principles established

#
  • The discretion to reinstate a dismissed suit must be exercised judiciously, on sound reason rather than whim, caprice or sympathy
  • The reinstatement test is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay

Court orders

#
  1. 1.The Application dated 26th February 2025 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Alex Wainana t/a John Commercial Agencies v Janson Mwangi Wanjihia
    [2015] eKLR
  • Gathiaka vs Nduriri
    [2004] 2KLR 67
  • Shah vs Mbogo
    [1967] E A 116 and 123B
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit dismissed for non-attendance, exercised under the Civil Procedure Act and the court's overriding objective

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mutia v Cadbury Kenya Limited (Cause 479 of 2018) [2025] KEELRC 2473 (KLR)", Case Analysis (2025). Not stated in judgment (Claimant's Notice of Motion dated 26th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2473/eng@2025-09-19

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