Okuku v Kenya Plantation & Agricultural Workers Union & 7 others (All sued on their own behalf and as Executive Committee Members, Kenya Plantation & Agricultural Workers Union, Thika Branch) [2026] K

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 1103 OF 2012

DANIEL OUMA OKUKU……….………................................CLAIMANT

VERSUS

KENYA PLANTATION & AGRICULTURAL

WORKERS UNION……………………………………….1ST RESPONDENT

GLADYS MUMBUA

DAVID WANYONYI

FAITH KARUITHA

ROSEMARY KAMAU

RUTH WANJIRU

PATRICK AKALI

BERNARD EMBOSA

(All sued on their own behalf and as Executive Committee Members, Kenya Plantation & Agricultural Workers Union, Thika Branch)………………………………………….……….2ND RESPONDENT

RULING

1. This ruling relates to the Notice of Motion dated 2nd October, 2024, brought pursuant to Article 159(2) of the Constitution of Kenya, 2010, Sections IA, 1B, 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010, and Rule 44 of the Employment and Labour Relations Court (Procedure) Rules, 2024. The Claimant/applicant seeks the following reliefs: -

i. Spent

ii. THAT the Order granted on 2nd October, 2024, be set aside and the Application dated 5th August,2024 herein be and is hereby reinstated for hearing on merit.

iii. THAT upon grant of prayer (2) above, the Court be pleased to issue a Hearing date for the said Application.

iv. THAT Costs of the Application be borne by the Respondents

2. The application is supported by grounds on the face of the motion and the affidavit sworn by Fredrick Ochanda Agwei on 2nd October, 2024.

3. The Applicant states that it filed an unopposed application dated 5th August, 2024, seeking to set aside the ruling delivered on 25th July, 2024, which dismissed its Party-and-Party Bill of Costs dated 4th March, 2020. The Applicant avers that it duly served the application on the Respondents.

4. The Applicant further contends that its advocate attended court virtually on 2nd October, 2024, from 8.30 a.m. to 4.00 p.m. but was unable to gain admission into the virtual session despite logging in through the provided link. He avers that the advocate subsequently contacted the court clerk and later visited the registry, only to learn that the application was dismissed for non-attendance.

5. The Applicant maintains that the failure to attend was inadvertent and unintentional and that no notice to show cause was served upon its advocates.

6. The Applicant contends that it was condemned unheard when its application was dismissed for non-attendance, contrary to the principles of fairness and justice. It maintains that it had fully complied with the procedural requirements, filed all necessary supporting documents, and was ready to prosecute the application.

7. The Applicant therefore seeks reinstatement of the dismissed application for hearing and determination on its merits, in the interest of justice.

8. The Respondents opposed the application vide a Replying affidavit sworn by Jefferson M. Museve on 9th October, 2026.

9. The Respondents confirm that the application came up for hearing on 2nd October, 2024, when they attended court, but it was dismissed for want of prosecution due to the Applicant’s non-attendance.

10. They contend that the reasons advanced for non-attendance are insufficient to justify setting aside the dismissal and urge the Court to dismiss the application with costs.

11. Both parties filed submissions on the motion, and they have been duly considered.

Analysis and Determination

12. The sole issue for determination is whether the Applicant has demonstrated sufficient cause to warrant reinstatement of his application dated 5th August, 2024.

13. The discretion to set aside an order made in the absence of a party is intended to prevent injustice arising from an accident, inadvertence or excusable mistake. However, it must be exercised judiciously and not to assist a party who has deliberately obstructed or delayed the course of justice.

14. In Shah v Mbogo & Another [1967] EA 116, the Court held that the discretion to set aside an ex parte order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but is not designed to assist a person who deliberately seeks to obstruct or delay the course of justice.

15. Similarly, in CMC Holding Limited v Nzioki [2004] KECA 143 (KLR), the Court of Appeal underscored that judicial discretion to set aside an ex parte order must be exercised judiciously, with the objective of ensuring that a litigant does not suffer injustice or hardship arising from an excusable mistake or error.

16. The Court must also be guided by Article 50(1) of the Constitution, which guarantees every person the right to have a dispute resolved through a fair and public hearing. This right, however, does not absolve litigants of their obligation to attend court and comply with procedural directions. Further, Article 159(2)(d) requires the Court to administer justice without undue regard to procedural technicalities, but it does not excuse indolence or disregard of court processes.

17. In determining the instant application, therefore, it is paramount that I consider the reasons for the Applicant’s counsel’s non-attendance and whether the circumstances justify reopening the application.

18. The Applicant's explanation is that its advocate logged into the virtual court session using the link provided in the cause list, but was not admitted into the proceedings. The advocate further states that he contacted the court clerk to establish the position of the matter and subsequently visited the registry, where he learnt that the application had already been dismissed.

19. On its part, the Respondents confirmed that they attended court on the material date and that the application was dismissed for non-attendance. The Respondents have, however, not specifically controverted the Applicant's explanation that its advocate experienced difficulties accessing the virtual session. Their general denial and assertion that the explanation is insufficient, does not establish that the Applicant deliberately failed to attend court or intended to delay the proceedings.

20. The Court also takes into account the fact that the application seeking to set aside the taxing officer's ruling had already been filed and served upon the Respondents, and the subsequent application to set aside the dismissal was made on the same date, which demonstrates promptness in seeking redress.

21. There is therefore no evidence that the Applicant deliberately abandoned the prosecution of its application or that reinstatement would occasion prejudice to the Respondents incapable of being compensated by an award of costs.

22. The Court is, however, not persuaded by the Applicant's contention that failure to issue a notice to show cause rendered the dismissal irregular. The application was fixed for hearing on 2nd October, 2024, and the dismissal arose from non-attendance on the scheduled hearing date, rather than from prolonged inactivity. A notice to show cause was therefore not a prerequisite for the Court to proceed in the Applicant's absence.

23. In the final analysis, I am satisfied that the Applicant has offered a reasonable explanation for his advocate's non-attendance, and accordingly, find merit in his application dated 2nd October, 2024, and allow the same on the following terms:-

a) That the order made on 2nd October, 2024, dismissing the Applicant's application dated 5th August, 2024, is hereby set aside.

b) That the Applicant's application dated 5th August, 2024, is hereby reinstated for hearing and determination on its merits.

c) That the Applicant shall take a mention date for directions on the reinstated application.

d) The costs of the application shall be in the cause.

24. It is so ordered.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2026.

C. N. BAARI

JUDGE

Appearance:

Ms. Chege present for the Claimant/Applicant

Ms. Okondo h/b for Ms. Guserwa for the Respondents

Ms. Esther S - C/A