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ELRCAllowedNot stated in the judgment· [2025] KEELRC 2882 (KLR)
Mwahendo v Muslims for Human Rights (Cause E020 of 2024) [2025] KEELRC 2882 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan employment court reinstated a worker's dismissed lawsuit, ruling his lawyer's honest mistake about a hearing date should not cost him his day in court.
What this practically means
#Executive summary
#The Claimant/Applicant moved the Employment and Labour Relations Court by Notice of Motion dated 27th February 2025, under section 16 of the Employment and Labour Relations Court Act, 2014 and rule 74(1)(a), (2) and (3) of the Employment and Labour Relations Court (Procedure) Rules, seeking to set aside the ruling and consequential orders of 11th February 2025 dismissing his suit for want of prosecution. He explained that a hearing date of 11th February 2025 was fixed in the presence of both counsel on 11th November 2024, but his counsel misdiarised it as 21st February 2025 and communicated the wrong date to him. He only learned of the dismissal through a message from the JudiciaryKe court system, which he verified on the filing portal. The Respondent opposed, contending the application was vexatious and frivolous, that the Claimant ought to have followed up on the case through the CTS platform, and that reinstatement would prolong litigation and waste judicial time. Ocharo Kebira J framed a single question: whether the application had merit. The Court held that although it has discretion to set aside ex parte proceedings, the discretion must be exercised judiciously with regard to the constitutional rights of access to justice (Article 48) and fair hearing (Article 50), citing Stecol Corporation Limited v Susan Awour Mudembo. The onus lies on the applicant to show sufficient reason, which is not fixed but case-specific. The Court found no reason to doubt the Claimant's explanation, which the Respondent had not displaced; the non-attendance stemmed from inadvertent counsel's mistake, which should not be visited on the client, and the Claimant had attended all previous dates. The Court allowed the application, set aside the dismissal order, reinstated the claim for hearing on a priority basis, and ordered each party to bear its own costs.
Key legal issues
#01
Whether the dismissal of the claim for want of prosecution should be set aside on account of counsel's misdiarising of the hearing date
Holding
The application was meritorious; the mistake was inadvertent and not challenged by the Respondent, and the dismissal order was set aside with the claim reinstated.
Reasoning
The Court found the discretion to set aside ex parte orders must be exercised judiciously with regard to Articles 48 and 50. The Claimant gave a credible explanation of misdiarising by counsel, which the Respondent did not displace. The Claimant had attended all previous dates and was keen to prosecute the claim, so counsel's mistake should not be visited on the client.
p. 3
Legal principles established
#- The court's discretion to set aside ex parte proceedings must be exercised judiciously, having regard to the constitutional rights of access to justice and fair hearing.
- The burden lies on the applicant to show a sufficient reason for non-attendance, but what constitutes sufficient reason depends on the circumstances of each case.
- An advocate's inadvertent mistake should not be visited upon the client.
Court orders
#- 1.The order dismissing the Claimant's claim is set aside
- 2.The claim is reinstated for hearing on merit on a priority basis
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, 2014 and rule 74(1)(a), (2) and (3) of the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwahendo v Muslims for Human Rights (Cause E020 of 2024) [2025] KEELRC 2882 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2882/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.