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MagistrateAllowedCM/ELRC Cause No. 426 of 2022· [2026] KEMC 489 (KLR)

Sserunjoji v Modern Coast Builders and Contractors Ltd (Cause E426 of 2022) [2026] KEMC 489 (KLR)

Employment and Labour Relations Court (Magistrates' Court, ELRC jurisdiction)
30 July 2026
EMEmily M. Mwamuye
2,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated an employee's dismissed case because his lawyer's honest diary mistake was fixable with compensation, not a reason to lose the case.

What this practically means

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Executive summary

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The Claimant's Notice of Motion dated 15th April 2025 sought to set aside an order of 21st January 2025 dismissing his employment suit for non-attendance. Counsel explained that he had inadvertently diarised the hearing for 27th January 2025 instead of 21st January 2025, exhibiting his diary page in support. The Respondent opposed, asserting indolence, that it had closed and archived its file, and raising procedural objections: that the Motion erroneously cited Article 45 of the Constitution (which concerns the family) and that the submissions were drawn by a firm other than the advocate on record. The Court framed four issues and held that the erroneous Article 45 reference was surplus citation that did not invalidate the application, since Order 12 Rule 7 was expressly invoked and the Respondent suffered no confusion or prejudice. The irregular appearance of two firms on the submissions was also held non-fatal, submissions being arguments rather than pleadings or evidence. On the merits, the Court held reinstatement under Order 12 Rule 7 is discretionary, not automatic, and weighed the credible diary-error explanation, the approximately three-month delay, absence of fraud or overreach, and the Respondent's compensable inconvenience. It corrected the Respondent's inconsistent assertions that the delay was four or five months and declined to infer two years of deliberate abandonment without a full procedural history. The interests of justice favoured reinstatement, and the Court set aside the dismissal order, reinstated the cause for hearing on its merits, and ordered the Claimant to pay the Respondent's costs of the application and thrown-away costs.

Key legal issues

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01

Whether erroneous citation of Article 45 of the Constitution fatally defects the application

Holding

No - it was surplus citation; Order 12 Rule 7 was expressly invoked and no prejudice resulted

Reasoning

Article 45 concerns the family and has no bearing on reinstatement, but the Motion also invoked Order 12 Rule 7 which empowers a court to set aside a dismissal order. The Respondent understood the relief and answered it fully without confusion. A court must be moved under an identifiable framework, but surplus citation without prejudice does not invalidate the application.

p. 6
02

Whether submissions drawn by a firm other than the advocate on record invalidate the application

Holding

No - submissions are arguments, not pleadings or evidence; the irregularity caused no prejudice

Reasoning

The application and affidavit were filed through H.N. Njiru & Company Advocates, the advocate on record, and the submissions were signed by that firm even though another firm appeared as drafting the document. Written submissions are arguments only; even if disregarded, the Motion and affidavit would remain for determination on the merits.

p. 7
03

Whether sufficient cause was demonstrated to set aside the dismissal

Holding

Yes - an inadvertent diary error, a three-month delay not inordinate, no fraud or overreach, and prejudice compensable by costs

Reasoning

The dismissal was regular, so reinstatement is discretionary. Counsel's diarised wrong date, supported by the exhibited diary, evidenced intent to attend rather than abandon the suit. The delay was about three months, not five as the Respondent claimed, and was not inordinate. The Respondent's inconvenience (archiving, fees settled) could be compensated by costs and no irremediable prejudice was shown.

p. 12

Legal principles established

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  • Where the Court has jurisdiction, the substantive relief is clear, the correct enabling procedural rule is cited and the opposing party has fully answered the application, an additional erroneous citation does not render the application incurably defective.
  • Reinstatement after dismissal for non-attendance is a discretionary remedy under Order 12 Rule 7, not automatic.

Court orders

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  1. 1.The order made on 21st January 2025, dismissing the Claimant's suit for non-attendance, is hereby set aside
  2. 2.CM/ELRC Cause No. 426 of 2022 is reinstated for hearing and determination on its merits
  3. 3.The Claimant shall bear the Respondent's costs of the application and the thrown-away costs occasioned by the aborted hearing of 21st January 2025
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Sserunjoji v Modern Coast Builders and Contractors Ltd (Cause E426 of 2022) [2026] KEMC 489 (KLR)", Case Analysis (2026). CM/ELRC Cause No. 426 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/489/eng@2026-07-30

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