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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 2722 (KLR)
Asega v Rabadiya Construction Company Limited & another (Employment and Labour Relations Cause 1270 of 2016) [2025] KEELRC 2722 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a ruling of the Employment and Labour Relations Court at Nairobi on a notice of motion dated 13/8/2024 by which the Claimant sought to set aside the court's order of 11/3/2024 dismissing his suit for want of prosecution and non-attendance. The Claimant explained that he resided in Kitale, received the hearing notice very late from his advocate, and that his non-attendance was not intentional; it was further argued that a party should not be punished for the mistakes of his advocate. The Claimant had earlier obtained an ex-parte judgment which was set aside on the Respondent's application. The Respondent, through its manager Wilson Odhiambo, opposed the application, deposing that the Claimant had already been granted a last adjournment to 11th March 2024, that on that date his counsel was again not ready as the Claimant was absent, and that the suit was properly dismissed for want of a reasonable explanation. The Respondent sought thrown away costs of Kshs.30,000.00 if the suit was reopened. The court accepted the Claimant's explanation, giving him the benefit of doubt on his residence in Kitale and the late notice, but treated the reinstatement as a final indulgence. The court conditionally set aside the dismissal, granting the Claimant the very last chance to prosecute his suit on condition that he pays thrown away costs of Kshs.15,000.00 to the Respondent on or before the hearing date, which was to be fixed on the date of delivery of the ruling.
Key legal issues
#01
Whether the Claimant's non-attendance on 11/3/2024 was excusable
Holding
Yes; the court accepted the explanation that the Claimant resides in Kitale and received the hearing notice very late, and the dismissal was set aside as a final indulgence.
Reasoning
The court weighed the Claimant's explanation against the Respondent's account that the Claimant had already been given a last adjournment. Accepting that the Claimant was not intentionally absent and that his advocate had ceased acting, the court chose to give him the benefit of doubt, but imposed thrown away costs and characterized the reinstatement as a very last chance.
p. 2
Legal principles established
#- A party should not ordinarily be punished for the mistake or failure of his advocate, and a dismissal for non-attendance may be set aside where a reasonable explanation exists.
Court orders
#- 1.The order dismissing the suit on 11/3/2024 for non-attendance is set aside and the Claimant is given the very last chance to prosecute his suit
- 2.The Claimant to pay thrown away costs of Kshs.15,000.00 to the Respondent on or before the hearing date to be set on the date of the ruling
- 3.A hearing date to be set on the date the ruling is delivered
- Jurisdiction invoked
- Inherent power to set aside its own orders dismissing a suit for want of prosecution; notice of motion dated 13/8/2024 under unspecified provisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asega v Rabadiya Construction Company Limited & another (Employment and Labour Relations Cause 1270 of 2016) [2025] KEELRC 2722 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2722/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.