1. Before this Court are two applications by the Plaintiffs. The first application is dated 19th December 2025 and seeks the following orders:
a) Spent.
b) That this Honourable Court be pleased to review, vary, discharge and/or set aside the orders dismissing this suit for want of prosecution issued on 6th July 2015.
c) That this Honourable Court be pleased to reinstate the suit for hearing and determination on the merits.
d) That the suit be transferred to the Employment and Labour Relations Court for hearing and determination.
e) That costs of the application be provided for.
2. The application is supported by the affidavit of Joyce Chesaro sworn on 19th December 2025. The deponent states that he has conduct of the matter on behalf of the Plaintiffs and that the suit was filed in the High Court in the year 2004 before the establishment of the Employment and Labour Relations Court. He avers that the suit was dismissed on 6th July 2015 upon a Notice to Show Cause, but neither the Plaintiffs nor their advocates were served with the said notice.
3. The deponent further states that after the establishment of the Employment and Labour Relations Court, efforts were made to trace the court file without success. According to him, the file remained unavailable for a considerable period and was only traced in or about December 2022. He further depones that the transition to electronic filing, coupled with disruptions occasioned by the Covid-19 pandemic, contributed to further delays in taking steps in the matter.
4. The Plaintiffs contend that the delay was neither deliberate nor inordinate and urge the Court not to visit the consequences of administrative and procedural challenges upon innocent litigants.
5. Before the first application could be heard, the Plaintiffs filed a second application dated 3rd March 2026 seeking an order transferring the suit to the Employment and Labour Relations Court. The Plaintiffs contend that the dispute arises from an employment relationship and therefore falls within the jurisdiction of the Employment and Labour Relations Court. They further argue that a transfer would serve the interests of justice and preserve the claim whose limitation period has since lapsed.
6. The applications were not opposed. No replying affidavit, grounds of opposition, or submissions were filed by the Defendants despite being afforded an opportunity to respond.
7. Having considered the applications, affidavits, and the material on record, the issues for determination are:
a) Whether sufficient cause has been shown to warrant setting aside the dismissal order issued on 6th July 2015 and reinstating the suit.
b) Whether the suit should be transferred to the Employment and Labour Relations Court.
8. On the first issue, the Court notes that the suit was instituted in 2004 when employment disputes fell within the jurisdiction of the High Court. The Court further notes the explanation advanced by the Plaintiffs that the court file could not be traced for a considerable period after the establishment of the specialised courts.
9. The Court takes judicial notice of the administrative challenges that accompanied the transition of employment matters from the High Court to the Employment and Labour Relations Court and the difficulties experienced in tracing some older files during that period.
10. The Court further takes judicial notice of the uncertainty that existed for a considerable period regarding the handling of Work Injury Benefits Act (WIBA) claims and related employment matters following the constitutional and jurisdictional challenges that culminated in decisions of the superior courts. Such uncertainty affected the progression of numerous matters countrywide and contributed to delays in their prosecution.
11. While the Court appreciates that litigation must come to an end and that parties are under a duty to prosecute their claims diligently, dismissal of a suit is a draconian measure that should be employed sparingly and only where the interests of justice demand.
12. In the present matter, the explanation tendered by the Plaintiffs regarding the missing court file, the transition of employment matters, the uncertainty affecting WIBA-related claims, and the subsequent challenges occasioned by the introduction of e-filing and the Covid-19 pandemic constitutes sufficient cause to warrant the exercise of this Court’s discretion.
13. The Court is satisfied that the delay has been reasonably explained and that any prejudice that may be occasioned to the Defendants can adequately be compensated by an award of costs. More importantly, substantive justice would be better served by allowing the parties to have the dispute determined on its merits.
14. Accordingly, the dismissal order issued on 6th July 2015 is hereby set aside, and the suit is reinstated.
15. On the question of jurisdiction, the Plaintiffs' claim as disclosed in the pleadings is prima facie an employment and labour relations dispute.
16. In the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA stated that jurisdiction is everything and without it a court must down its tools.
17. Likewise, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court emphasized that a court can only exercise jurisdiction conferred upon it by the Constitution or statute.
18. Since the Constitution and the Employment and Labour Relations Court Act now vest jurisdiction over employment and labour relations disputes in the Employment and Labour Relations Court, it is appropriate that the reinstated suit be heard and determined by that Court.
19. In the interests of substantive justice and taking into account that this matter was filed before the establishment of the Employment and Labour Relations Court, the Court finds that the appropriate order is to transfer the suit to the Employment and Labour Relations Court for hearing and determination.
20. Consequently, the Court makes the following orders:
a) The application dated 19th December 2025 is hereby allowed.
b) The order dismissing the suit for want of prosecution issued on 6th July 2015 is hereby set aside.
c) The suit is hereby reinstated for hearing and determination on the merits.
d) The application dated 3rd March 2026 is allowed.
e) The suit shall forthwith be transferred to the Employment and Labour Relations Court at Mombasa for hearing, determination and further directions.
f) Each party shall bear its own costs of the applications.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ....12 TH.... DAY OF ......JUNE............ 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
a) Spent.
b) That this Honourable Court be pleased to review, vary, discharge and/or set aside the orders dismissing this suit for want of prosecution issued on 6th July 2015.
c) That this Honourable Court be pleased to reinstate the suit for hearing and determination on the merits.
d) That the suit be transferred to the Employment and Labour Relations Court for hearing and determination.
e) That costs of the application be provided for.
2. The application is supported by the affidavit of Joyce Chesaro sworn on 19th December 2025. The deponent states that he has conduct of the matter on behalf of the Plaintiffs and that the suit was filed in the High Court in the year 2004 before the establishment of the Employment and Labour Relations Court. He avers that the suit was dismissed on 6th July 2015 upon a Notice to Show Cause, but neither the Plaintiffs nor their advocates were served with the said notice.
3. The deponent further states that after the establishment of the Employment and Labour Relations Court, efforts were made to trace the court file without success. According to him, the file remained unavailable for a considerable period and was only traced in or about December 2022. He further depones that the transition to electronic filing, coupled with disruptions occasioned by the Covid-19 pandemic, contributed to further delays in taking steps in the matter.
4. The Plaintiffs contend that the delay was neither deliberate nor inordinate and urge the Court not to visit the consequences of administrative and procedural challenges upon innocent litigants.
5. Before the first application could be heard, the Plaintiffs filed a second application dated 3rd March 2026 seeking an order transferring the suit to the Employment and Labour Relations Court. The Plaintiffs contend that the dispute arises from an employment relationship and therefore falls within the jurisdiction of the Employment and Labour Relations Court. They further argue that a transfer would serve the interests of justice and preserve the claim whose limitation period has since lapsed.
6. The applications were not opposed. No replying affidavit, grounds of opposition, or submissions were filed by the Defendants despite being afforded an opportunity to respond.
7. Having considered the applications, affidavits, and the material on record, the issues for determination are:
a) Whether sufficient cause has been shown to warrant setting aside the dismissal order issued on 6th July 2015 and reinstating the suit.
b) Whether the suit should be transferred to the Employment and Labour Relations Court.
8. On the first issue, the Court notes that the suit was instituted in 2004 when employment disputes fell within the jurisdiction of the High Court. The Court further notes the explanation advanced by the Plaintiffs that the court file could not be traced for a considerable period after the establishment of the specialised courts.
9. The Court takes judicial notice of the administrative challenges that accompanied the transition of employment matters from the High Court to the Employment and Labour Relations Court and the difficulties experienced in tracing some older files during that period.
10. The Court further takes judicial notice of the uncertainty that existed for a considerable period regarding the handling of Work Injury Benefits Act (WIBA) claims and related employment matters following the constitutional and jurisdictional challenges that culminated in decisions of the superior courts. Such uncertainty affected the progression of numerous matters countrywide and contributed to delays in their prosecution.
11. While the Court appreciates that litigation must come to an end and that parties are under a duty to prosecute their claims diligently, dismissal of a suit is a draconian measure that should be employed sparingly and only where the interests of justice demand.
12. In the present matter, the explanation tendered by the Plaintiffs regarding the missing court file, the transition of employment matters, the uncertainty affecting WIBA-related claims, and the subsequent challenges occasioned by the introduction of e-filing and the Covid-19 pandemic constitutes sufficient cause to warrant the exercise of this Court’s discretion.
13. The Court is satisfied that the delay has been reasonably explained and that any prejudice that may be occasioned to the Defendants can adequately be compensated by an award of costs. More importantly, substantive justice would be better served by allowing the parties to have the dispute determined on its merits.
14. Accordingly, the dismissal order issued on 6th July 2015 is hereby set aside, and the suit is reinstated.
15. On the question of jurisdiction, the Plaintiffs' claim as disclosed in the pleadings is prima facie an employment and labour relations dispute.
16. In the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA stated that jurisdiction is everything and without it a court must down its tools.
17. Likewise, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court emphasized that a court can only exercise jurisdiction conferred upon it by the Constitution or statute.
18. Since the Constitution and the Employment and Labour Relations Court Act now vest jurisdiction over employment and labour relations disputes in the Employment and Labour Relations Court, it is appropriate that the reinstated suit be heard and determined by that Court.
19. In the interests of substantive justice and taking into account that this matter was filed before the establishment of the Employment and Labour Relations Court, the Court finds that the appropriate order is to transfer the suit to the Employment and Labour Relations Court for hearing and determination.
20. Consequently, the Court makes the following orders:
a) The application dated 19th December 2025 is hereby allowed.
b) The order dismissing the suit for want of prosecution issued on 6th July 2015 is hereby set aside.
c) The suit is hereby reinstated for hearing and determination on the merits.
d) The application dated 3rd March 2026 is allowed.
e) The suit shall forthwith be transferred to the Employment and Labour Relations Court at Mombasa for hearing, determination and further directions.
f) Each party shall bear its own costs of the applications.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ....12 TH.... DAY OF ......JUNE............ 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE