Skip to content
JudgmentPHILLIP MUCHOKI MUOKI VS GEORGE MARUGU2 min read

PHILLIP MUCHOKI MUOKI VS GEORGE MARUGU

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The court addressed an application to set aside the dismissal of a suit for want of prosecution, noting that the claimant's counsel had made attempts to set down the case for hearing but failed to receive a response. The court found that the failure to attend court was not deliberate but attributed the delay to the counsel's or claimant's dilatoriness, as the matter was dismissed for want of prosecution after the parties were absent on a scheduled hearing date. The court reinstated the suit but directed that a hearing date be fixed by October 13, 2024.

'


  1. Before me is an application dated 27th August, 2018 seeking the setting aside of the dismissal of the suit herein dated 2nd May, 2018 for want of prosecution on the grounds of   among others that the failure to attend Court by the Counsel was not deliberate and that the claimant had made several attempts through her advocate to set down for hearing, the suit without success and that failure to attend court was not deliberate and excusable.
  2. The application was supported by Counsel Khalwale who deponed among others that he has made efforts to set down for hearing, the suit herein without success and that in September while checking the position of the case in the portal he found that the case had been dismissed for want of prosecution.
  3. Counsel swore a further affidavit in which he deponed that in his earlier affidavit sworn on 27th August, 2024 he omitted to attach the several letters to the Court seeking to set down for hearing the suit without success. He therefore attached the said letters. 

DETERMINATION

  1. The objective of the Court is to determine finally, any dispute presented before it. Counsel has deponed that he wrote severally to court asking for a mention to fix the suit for  hearing but never received any response. The Court has perused the record and noticed that the claimant counsel appeared in Court on 22nd September, 2022 seeking a date for hearing and asked for a hearing date and it would appear that the matter was fixed for hearing by the DR on 7th November, 2022. It came before Honourable Lady Justice Mbaru on that date and both parties were absent. The matter was therefore dismissed for want of prosecution. It however took more than two and a half years before the present application was brought. The Court therefore attributes this as dilatoriness on the part of Counsel and or the claimant.
  2. As mentioned earlier, the objective of the court is to determine finally, the disputes presented before it and dispense justice. This however ought not to be taken advantage of by the litigants. The court will accord the claimant the benefit of doubt in the failure to diligently prosecute the case and reinstate the same but direct that the same be mentioned on 13th October, 2024 before me for purposes of fixing a hearing date. 
  3. It is so ordered.

Dated at Nairobi this ……… day of…………. 2025

Delivered virtually this……… day of ………….2025

Abuodha Nelson Jorum

Presiding Judge-Appeals Division

'
    PHILLIP MUCHOKI MUOKI VS GEORGE MARUGU PHILLIP MUCHOKI MUOKI VS GEORGE MARUGU