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ELRCDismissedELRC Judicial Review application; Notice of Motion dated 6th August, 2025

Chere v Lake Basin Development Authority (Judicial Review E045 of 2023) [2025] KEELRC 2913 (KLR)

Employment and Labour Relations Court
28 October 2025
1,885 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a case dismissed after the litigant missed a virtual hearing and could not prove his excuse.

What this practically means

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Executive summary

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This was a ruling on the applicant's Notice of Motion dated 6th August, 2025, brought under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside an order of 23rd July, 2025 dismissing, for non-attendance, his application dated 10th July, 2025 seeking review of a judgment delivered on 25th July, 2024, and to reinstate that application for hearing. The applicant attributed his non-attendance to challenges accessing the virtual court link, annexing three pages of Safaricom call logs. The respondent opposed through Grounds of Opposition and a Replying Affidavit by Patrick Barasa, who deponed that he accessed the court without difficulty via the publicly available cause-list link and that the applicant simply logged in late. The respondent further contended the call logs were electronic evidence filed without the mandatory certificate under Section 106B of the Evidence Act. The court framed a single issue: whether the application had merit. It held that the absence of the certificate rendered the annextures inadmissible, leaving the applicant with no verifiable evidence of the alleged access challenges. Even if admissible, the applicant failed the test of diligence: he did not disclose the link used, the timing of his attempts, or the nature of the challenges, while respondent's counsel used the same public link without difficulty. Relying on Africa Blooms Ltd v Gatari, Solomon Mbugua Kori v Brooke Bond (K) Ltd and John Obanda v Stage Coach International Services Ltd, the court dismissed the motion and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the instant application has merit, that is, whether the applicant gave sufficient justification for his non-attendance on 23rd July, 2025 to warrant setting aside the dismissal order and reinstating the application dated 10th July, 2025

Key legal issues

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01

Whether the applicant demonstrated sufficient justification for non-attendance on 23rd July, 2025

Holding

He did not; the call-log annextures were inadmissible for want of a certificate under Section 106B of the Evidence Act, and even if admissible the applicant failed the test of diligence

Reasoning

The court found the electronic evidence unauthenticated and inadmissible, leaving the applicant with no verifiable evidence of the virtual-link challenges. Even on the merits, the applicant did not disclose the link used, the time of his access attempts, or the nature of the challenges, while respondent's counsel accessed the same publicly available link without difficulty.

p. 4
02

Whether the court should exercise its discretion to reinstate the dismissed application

Holding

No; dismissal for non-attendance was justified and the discretionary favour was not earned

Reasoning

The applicant was aware the application was listed, failed to attend promptly, and blamed the virtual link without demonstrating any defect in it. The respondent's counsel attended via the publicly available cause-list link without challenge. The court therefore declined to exercise its discretion in the applicant's favour and dismissed the application.

p. 4

Legal principles established

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  • A party relying on an electronic record printed on paper, stored, recorded or copied on optical or electro-magnetic media must accompany it with a Certificate of Electronic Evidence; without it the record is inadmissible
  • The court has jurisdiction to set aside an order of dismissal for non-attendance, to be exercised judicially based on the grounds relied upon and circumstances including prejudice
  • A litigant must exercise diligence in prosecuting his case; a case belongs to the party in the suit

Court orders

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  1. 1.The Notice of Motion dated 6th August, 2025 is dismissed
  2. 2.Parties shall bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Setting aside the dismissal Order made on 23rd July, 2025

Applicant failed to prove sufficient justification for non-attendance; his electronic evidence was inadmissible for want of a certificate under Section 106B of the Evidence Act

p. 4

Reinstatement of the application dated 10th July, 2025 for hearing

Follows automatically from the failure to set aside the dismissal order

p. 4

Costs

Parties shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it is the finding of the court that the applicant has failed to prove that he had suficient justification for non-attendance of court on 23rd July, 2025, for the court to exercise its discretionary favour.
p. 4Justification for non-attendance
The absence of the certificate in question rendered the annextures relied upon by the applicant inadmissible as evidence for purposes of this application.
p. 4Admissibility of electronic evidence
Flowing from the foregoing, it is discernible that the Notice of Motion dated 6th August, 2025 is for dismissal and it is accordingly dismissed.
p. 4Final orders
Parties shall bear their own costs.
p. 4Costs
It is trite law that a case belongs to the party in the suit. In this instance, the applicant failed the test of diligence.
p. 4Diligence of litigants

Issues in the judgment

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minor

Applicant's affidavit deposition refers to a virtual link challenge on 23rd July, 2023 although the material date throughout is 2025

minor

The record recites that the applicant was absent on 23rd July, 2025 while also deposing he accessed the virtual court but was told the matter had been called out earlier and dismissed

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, "Chere v Lake Basin Development Authority (Judicial Review E045 of 2023) [2025] KEELRC 2913 (KLR)", Case Analysis (2025). ELRC Judicial Review application; Notice of Motion dated 6th August, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2913/eng@2025-10-28

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