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ELRCDismissedNot stated in the judgment· [2016] KEELRC 250 (KLR)

Dalmas Orora Okeya v Roy Parcels Services Limited [2016] KEELRC 250 (KLR)

Employment and Labour Relations Court
2 December 2016
RSRadido Stephen
269 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to dismiss a delayed employment case, ruling that court backlogs—not the parties—caused the delay.

What this practically means

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Executive summary

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The Respondent in an employment Cause moved the Court by a motion dated 18 October 2016 seeking dismissal of the Cause for want of prosecution. The Claimant opposed the motion by a replying affidavit. When the motion came up for hearing, Mr. Chege appeared for the Claimant and Mr. Andama for the Respondent, but Mr. Chege was absent when the cause list was called, with no explanation for his whereabouts. The Court reviewed the history of the Cause: it was first placed before the Court on 13 May 2015 for purposes of scheduling a hearing date, but because the diary for that year had been closed, it was stood over generally. It next came up on 8 November 2016, when the Respondent fixed the dismissal application for hearing. The Court held that, given the non-availability of hearing dates in 2015, dismissing the Cause at that juncture would not be in the interest of justice. Rather than dismiss the Cause, the Court issued case-management directions: both parties were to file witness statements and any further documents before 16 December 2016; agreed issues were to be filed before 16 January 2017; and the Cause was to be mentioned on 27 January 2017 to confirm compliance and schedule a hearing date. Costs were awarded in the cause. The judgment was delivered, dated and signed in Nakuru on 2 December 2016 by Radido Stephen, Judge.

Key legal issues

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01

Whether the Cause should be dismissed for want of prosecution

Holding

Dismissal refused; the delay was due to the Court's closed diary in 2015 and directions were issued to prepare the Cause for hearing

Reasoning

The Court traced the history of the Cause: it first came up on 13 May 2015 for scheduling but the diary for the year had been closed and it was stood over generally. The next listing was on 8 November 2016 when the Respondent fixed the dismissal application. Since the non-availability of hearing dates in 2015 explained the inaction, dismissing the Cause would not be in the interest of justice. Instead, the Court issued case-management directions to bring the matter to a hearing.

p. 1

Legal principles established

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  • A Cause should not be dismissed for want of prosecution where the delay is attributable to the unavailability of hearing dates rather than to the parties' inaction

Court orders

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  1. 1.The Respondent's motion dated 18 October 2016 seeking dismissal of the Cause for want of prosecution was not granted; dismissal would not be in the interest of justice
  2. 2.Both parties to file witness statements and any further documents before 16 December 2016
  3. 3.Agreed Issues to be filed before 16 January 2017
  4. 4.Cause to be mentioned on 27 January 2017 to confirm compliance and schedule a hearing date
  5. 5.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the Cause (Employment and Labour Relations Court Act); not expressly cited in the judgment

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, "Dalmas Orora Okeya v Roy Parcels Services Limited [2016] KEELRC 250 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/250/eng@2016-12-02

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