Joseph Moilo v University of Nairobi [2016] KEELRC 554 (KLR)
The bottom line
#Kenya's Employment Court reinstated a dismissed case because substantive justice outweighed the claimant's delay—but warned lazy litigants get only one chance.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's delay in setting the suit down for hearing justified refusal of reinstatement
The court found on the record that the claimant took no action between July 2015 and the dismissal on 12th May 2016, while it was the respondent who sought dates; the claimant was therefore indolent.
The court reviewed its own record, noting that on 18th June 2015 it had directed the claimant to set the suit down within 60 days failing automatic dismissal. The claimant attempted to fix dates in July 2015, after which there was no indication it moved the court or the registry. The respondent alone sought mention and direction dates. On that record the claimant's inactivity from July 2015 to May 2016 amounted to indolence which ordinarily disentitles a party to the court's aid.
Whether Article 159 and the interest of substantive justice warranted reinstatement despite the claimant's indolence
The court exercised its discretion in favour of reinstatement as a one-time indulgence, so that the claim could be heard and determined on the merits.
Balancing the claimant's indolence against the constitutional mandate under Article 159 to achieve substantive justice and avoid determining disputes on technicalities, the court decided to indulge the claimant once and reinstate the claim so it could be heard and justice done. The claimant had also offered an explanation centred on the closure of the court diary, and the delay from filing in October 2013 to dismissal in May 2016 was comparatively short.
Legal principles established
#- The Court has a discretion to reinstate a suit dismissed for want of prosecution, but that discretion will only be exercised in favour of a litigant who has been diligent; the court will not aid an indolent litigant.
- Article 159 of the Constitution obliges courts to dispense substantive justice rather than insist on technicalities, and may justify indulgence even where a party has been less than fully diligent.
Court orders
#- 1.The suit dismissed for want of prosecution on 12th May 2016 is reinstated
- 2.Costs in the cause
- Jurisdiction invoked
- Articles 50(1) and 159(2)(d) of the Constitution of Kenya; Section 3A of the Civil Procedure Act Cap 21; Order 12 Rule 7 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Moilo v University of Nairobi [2016] KEELRC 554 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/554/eng@2016-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.