Josephine Serenge v Peter Gaweke Luk & Embassy of South Sudan, Nairobi
The bottom line
#Kenya's Employment Court reinstated a worker's nine-year-old case, ruling her lawyer's missed hearing shouldn't cost her the chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown to set aside dismissal for want of prosecution
Yes - the claimant's illness and her counsel's failure to attend due to internet challenges were not deliberate; the claimant acted expeditiously upon learning of the dismissal.
The court found the claimant notified her advocate of illness on 25th January 2026 and the advocate emailed the respondent's counsel on 27th January 2026 signalling an adjournment application. The advocate's non-attendance was due to internet challenges, not wilful negligence. The claimant learned of the dismissal on 8th March 2026 and filed the application on 23rd March 2026, acting expeditiously. Precedents on sufficient cause and excusable mistake supported reinstatement.
Whether the delay of over nine years and repeated changes of advocates defeated the application
No - the delay was not entirely attributable to the claimant; the respondent's interlocutory applications and jurisdictional objections contributed to the delay.
The court noted the respondent twice challenged the court's jurisdiction, including a preliminary objection based on diplomatic immunity dismissed on 3rd November 2022 and a second application dismissed on 9th May 2024. The record showed the suit's progress was partly blamable on the respondent. The change of advocates complied with Order 9 Rule 9(b) via a duly filed and served consent.
Whether the change of advocates was procedurally regular under Order 9 Rule 9
Yes - a consent filed between outgoing and incoming advocates, duly served, fully complied with Order 9 Rule 9(b).
The court held that a duly executed Consent of Change of Advocates dated 18th March 2026 between Gatuhi & Onyore Advocates and Nyambura Gichuhi & Company Advocates was filed and served on the respondents, satisfying Order 9 Rule 9(b); substantial compliance suffices, the rule's mischief being protection of counsel's benefits after concluding a suit.
Legal principles established
#- The failure or mistake of counsel should not be visited upon an innocent litigant where the applicant demonstrates sufficient cause.
- Setting aside a dismissal for want of prosecution requires demonstration of sufficient cause, a timely application, and absence of unremediable prejudice.
Court orders
#- 1.The order made on 28th January 2026 dismissing the suit for want of prosecution is set aside
- 2.The Claimant's suit in the Amended Memorandum of Claim dated 2nd January 2022 is reinstated for hearing and determination on merit
- 3.The claimant to pay the Respondent Kshs. 5000 as throw away costs of the application before the next hearing
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; inherent powers under Section 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Serenge v Peter Gaweke Luk & Embassy of South Sudan, Nairobi", Case Analysis (2026). Cause No. 493 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2580/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.