Josephine Serenge v Peter Gaweke Luk & Embassy of South Sudan, Nairobi

a) That this Honourable Court be pleased to set aside the order made on the 28th January 2026, dismissing this suit for want of prosecution. b) That this Honourable Court be pleased to reinstate the Claimant's suit Memorandum of Claim (amended) dated 2nd January 2022, for hearing and determination on merit. c) That costs be in the cause. 2. The Motion is supported by an Affidavit sworn by the Claimant, on 23rd March 2026 and is opposed by 1 st respondent through a Replying Affidavit sworn 5 th May 2026. The Motion was disposed of by written submissions. Facts 3. The Claimant was employed by the 1st Respondent as a domestic worker/house help from 1st February 2004 up until 22nd October 2013, when she was arrested by police and charged in Kibra Chief Magistrate Court with the offence of "stealing by Servant contrary to section 281 of the Penal RULING IN ELRC CAUSE NO. 493 OF 2017. 2

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Code. Upon trial, she was acquitted on 16 th August 2016, under section 210 of the Criminal Procedure Code. 4. On 17th August 2016, the Claimant reported back to work since she had been assured by the 1 st Respondent that if she is cleared by the court, she would continue working. However, the 1st Respondent told the Claimant that her employment contract had been terminated. 5. On or around March 2017, the Claimant lodged a claim against the 1st Respondent vide a Memorandum of Claim dated 7th March 2017 which she amended on 7 th March 2017 with the leave of the court. 6. The 1st respondent filed Memorandum of Response dated 2 nd March 2022. Thereafter the suit was severally challenged but the court declined to strike out the same and allowed it to proceed to trial. 7. On 28th January 2026, the matter came up for hearing and only the 1st respondent attended. The respondent’s counsel told the court that the claimant’s counsel had sent an email indicating that the claimant was indisposed but urged the RULING IN ELRC CAUSE NO. 493 OF 2017. 3

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court to dismiss the suit since claimant had lost interest in the same. 8. The court, dismissed the suit for want of prosecution since no good cause was shown why the claimant’s counsel did not attend court to seek adjournment on behalf of the claimant. 9. The Claimant contends that prior to the hearing date, she fell ill and was unable to attend Court. That on 25 th January 2026, she communicated to her Advocate on record informing him that she would not be in a position to attend Court due to illness (Annexure "JOS-2"). Her Advocate acknowledged the communication and informed her that he would seek an adjournment (Annexure "JOS-3"). 10. On 27th January 2026, the Advocate shared with the Claimant a copy of a letter addressed to the Respondent's Advocate indicating his intention to apply for an adjournment on the hearing date (Annexure "JOS-4"). Her counsel did not attend court on 28 th January 2026 and the suit was dismissed for want of prosecution. RULING IN ELRC CAUSE NO. 493 OF 2017. 4

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11. She averred that on 8th March 2026, she texted her Advocate then on record and informed him that she was through with medication and wanted to know the next hearing date. To her shock, the Advocate informed her that he was not in Nairobi and that on 28 th January 2026, he did not make it to Court due to internet challenges, and as such the suit was dismissed (Annexure "JOS-5"). 12. The Claimant lost confidence in the said advocate and collected her file on 16th March 2026 (Annexure "JOS-6") and on 17th March 2026, she instructed another law firm to represent her. On 18th March 2026, a Consent of Change of Advocate was signed between the outgoing law firm, Gatuhi & Onyore Advocates and the incoming law firm, Nyambura Gichuhi & Company Advocates (Annexure "JOS-7"). She blamed her former counsel for the dismissal of the suit and urged the court to reinstate the same. 13. The 1st Respondent opposed the Claimant's application. He contended that on 27th January 2026 at about 8:00 p.m, Counsel for the Claimant emailed his Counsel notifying him RULING IN ELRC CAUSE NO. 493 OF 2017. 5

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that he would be seeking an adjournment on the hearing date because his client was indisposed. However, on 28 th January 2026 neither the Claimant nor her Advocate appeared in Court to formally seek adjournment and therefore the suit herein was dismissed for want of prosecution. 14. The 1st Respondent stated that the suit has been pending since 14th March 2017, a period of over nine (9) years, without determination. Besides, the matter has been before Court for more than twenty-seven (27) occasions, yet no substantive hearing has been conducted. It highlighted a pattern of aborted hearings, 9 th March 2023, 20th September 2023, 29th January 2024 and 29th May 2025. Therefore it maintained that the dismissal of the suit on 28 th January 2026 was justified. 15. The 1st Respondent further contended that the Claimant has engaged in incessant and strategically timed changes of advocates. On or about 2nd January 2022, the Claimant appointed M/S Gatuhi & Onyore Advocates in place of M/S RULING IN ELRC CAUSE NO. 493 OF 2017. 6

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Kimani Kahiro & Associates Advocates and in or about 2026, immediately after dismissal of the suit, the Claimant again changed advocates, appointing M/S Nyambura Gichuhi & Company Advocates. Analysis 16. Having considered the Notice of Motion, Affidavits and the written submissions by both parties the main issue for determination is whether the Claimant has demonstrated sufficient cause to warrant setting aside the dismissal order of 28th January 2026 and reinstatement of the suit to hearing. 17. The power to set aside a dismissal for want of prosecution is discretionary and governed by Order 12 Rule 7 of the Civil Procedure Rules, 2010, which provides that: "Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as are just." 18. Section 3A of the Civil Procedure Act provides that: RULING IN ELRC CAUSE NO. 493 OF 2017. 7

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"Nothing in this Act shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." 19. The legal threshold for setting aside a dismissal order has been discussed in various court decisions and it includes existence of a sufficient cause, timely application for setting aside, consideration of any possible prejudice to the parties that cannot be remedied by costs. 20. In Wachira Karani v Bildad Wachira [2016] eKLR Mativo J held that: “Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must RULING IN ELRC CAUSE NO. 493 OF 2017. 8

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demonstrate that he was prevented from attending court by a sufficient cause...” 21. In Shah v Mbogo and Another [1967] EA 116 the Court of Appeal of East Africa held that: “This discretion (to set aside decisions) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” (emphasis added) 22. Finally, in CMC Holdings Ltd v Nzioki [2004] 1 KLR 173, the Court observed that the discretion of the Court should be exercised to avoid injustice and hardship resulting from accidental error. 23. From the foregoing binding precedents, it is clear that setting aside of judgment or court orders is not a matter of cause but one that must be grounded on demonstration by the RULING IN ELRC CAUSE NO. 493 OF 2017. 9

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applicant that the impugned decision was not occasioned by wilful negligence on his part. It therefore behoves of the applicant to establish by affidavit evidence a sufficient cause to warrant granting of the order. 24. In this case the Claimant has explained that on 25 th January 2026, she fell ill and communicated to her Advocate on record informing him that she would not be in a position to attend Court for the hearing due to illness. The Advocate acknowledged the communication and informed the Claimant that he would seek an adjournment. 25. The respondent’s advocate acknowledged that the claimant’s Advocated wrote an email to him on 27 th January 2026, indicating his intention to apply for an adjournment due to the claimant’s illness. The Claimant reasonably believed that her Advocate would attend Court and seek the adjournment. However, the Advocate failed to attend Court on the scheduled hearing date due to alleged internet challenges and the suit was dismissed. RULING IN ELRC CAUSE NO. 493 OF 2017. 10

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26. The Claimant only became aware of the dismissal on 8 th March 2026 when she followed up with her Advocate. She acted expeditiously by collecting her file on 16 th March 2026, instructing new advocates on 17th March 2026, executing a Consent of Change of Advocate on 18 th March 2026 and filing the present application on 23rd March 2026. 27. The Claimant also cited Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, where the Court stated that "blunders will continue to be made from time to time and it does not follow that because a mistake has been made, a party should suffer the penalty of not having his case heard on merit." 28. In Belinda Murai & Others v Amos Wainaina [1978] eKLR, the Court held that "a mistake is a mistake. It is no less a mistake because it is an unfortunate slip." 29. The 1st Respondent contends that the delay in prosecuting the suit is inordinate and inexcusable, having pended for over nine (9) years without determination and that the Claimant has engaged in repeated changes of advocates as RULING IN ELRC CAUSE NO. 493 OF 2017. 11

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a delay tactic. The record is clear that the progress of the suit was partly to blame on the 1st Respondent through interlocutory applications and objection. 30. The 1st Respondent filed a Notice of Preliminary Objection dated 8th April 2022 attempting to hide behind diplomatic immunity and deny this Court jurisdiction. This Preliminary Objection was dismissed in a ruling delivered on 3 rd November 2022. 31. Further, the 1st Respondent filed an application by Notice of Motion dated 25th January 2024 challenging the jurisdiction of this Court for the second time. This second attempt was also rejected in a ruling delivered on 9 th May 2024, in which the 1st Respondent's application was dismissed with costs. 32. Regarding the alleged procedural irregularity concerning the change of advocates, I note that Order 9 Rule 9 of the Civil Procedure Rules provides that when there is a change of advocate after judgment has been passed, such change shall not be effected without an order of the court (a) upon an application with notice to all the parties; or (b) upon a RULING IN ELRC CAUSE NO. 493 OF 2017. 12

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consent filed between the outgoing advocate and the proposed incoming advocate. 33. In the present matter, a duly executed Consent of Change of Advocates dated 18th March 2026 between the outgoing advocates, Gatuhi & Onyore Advocates and the incoming advocates, Nyambura Gichuhi & Company Advocates was filed. The said Consent was duly served upon the Respondents. The requirements of Order 9 Rule 9(b) of the Civil Procedure Rules were therefore fully complied with. 34. In Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, the Court emphasized that substantial compliance with Order 9 Rule 9 is sufficient where consent between advocates has been filed. The mischief in the said rule was to protect counsel from replacement after concluding a suit, and thereby deny him/her the benefits of representing the client. 35. In this case, I am satisfied that the claimant has demonstrated that the failure to attend court for hearing on 28th January 2026, was not deliberate but due to illness and RULING IN ELRC CAUSE NO. 493 OF 2017. 13

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mistake by her counsel. The mistake or failure of counsel should not be visited upon an innocent litigant. 36. In view of the foregoing matters, I find that the Claimant has demonstrated sufficient cause to warrant setting aside of the dismissal order of 28th January 2026. I further find that the delay in prosecuting the suit since 2017 is not entirely attributable to the Claimant. 37. I am also satisfied that the Claimant acted expeditiously in filing the instant motion upon learning of the dismissal of her suit. The 1st Respondent has not demonstrated that it will suffer any prejudice that cannot be adequately compensated by costs if the suit is reinstated. It will have the chance to be heard on its defence on merit. However, declining the reinstatement will be more prejudicial to the claimant as she will be permanently banished from the seat of justice. 38. On the issue of costs, I noted before dismissing the suit that the main reason was the absence of the counsel from the court after writing an email to the defense counsel, only hours before the hearing, that he was aware of the hearing RULING IN ELRC CAUSE NO. 493 OF 2017. 14

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but he was going to seek adjournment. It follows that the Claimant's previous Advocate was entirely to blame for the dismissal of the suit. What the claimant will do with that finding is upon her but since she has sought this court’s discretion the same is granted on condition that she pays the respondent throw away costs of the application assessed at Kshs. 5000. Conclusion 39. I have found that the Claimant has demonstrated sufficient cause to warrant setting aside the dismissal order of 28 th January 2026. Consequently, I allow the Notice of Motion dated 23rd March 2026 in the following terms: a) The order made on 28th January 2026 dismissing this suit for want of prosecution is hereby set aside. b) The Claimant's suit in the Amended Memorandum of Claim dated 2nd January 2022, is hereby reinstated for hearing and determination on merit. RULING IN ELRC CAUSE NO. 493 OF 2017. 15

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c) The claimant to the Respondent Kshs. 5000 as throw away costs of the application before the next hearing. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Gichuhi for Claimant Ndegwa for Respondent RULING IN ELRC CAUSE NO. 493 OF 2017. 16

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