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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 554 (KLR)

Joseph Moilo v University of Nairobi [2016] KEELRC 554 (KLR)

Industrial Court (Employment and Labour Relations Court) of Kenya
26 September 2016
2,369 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a former employee who alleged he was forced to retire over ten years before his time, applied by Notice of Motion under Articles 50(1) and 159(2)(d) of the Constitution, Section 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules to reinstate his suit, which had been dismissed for want of prosecution on 12th May 2016. On 18th June 2015 the court had declined an earlier dismissal motion but directed that the suit be set down for hearing within 60 days, failing which it would stand dismissed. The claimant argued that the delay was occasioned by the closure of the court diary and relied on Nagle v Fielden, Birket v James, Allen v Alfred McAlpine, Agip (Kenya) Ltd v Highlands Tyres and Saggo v Bhari on inordinate and inexcusable delay. The respondent, through Catherine N. Ngunjiri's replying affidavit, contended that the claimant had taken no material steps to prosecute the claim for over a year, that it was the respondent who sought dates, and relied on Shah v Mbogo, Josephat Muthui Muli v Ezeetec Ltd, Ivita v Kyumbu and Venture Capital and Credit Ltd v Consolidated Bank of Kenya Ltd. Wasilwa J found on the record that no action was taken by the claimant between July 2015 and the dismissal, and that the respondent alone had been vigilant. Nonetheless, invoking Article 159's mandate for substantive justice, the court indulged the claimant once, reinstated the suit, and ordered costs in the cause.

Key legal issues

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01

Whether the claimant's delay in setting the suit down for hearing justified refusal of reinstatement

Holding

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.

Reasoning

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.

p. 5
02

Whether Article 159 and the interest of substantive justice warranted reinstatement despite the claimant's indolence

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The suit dismissed for want of prosecution on 12th May 2016 is reinstated
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d) and Article 159 generally
  • Civil Procedure ActSection 3A (Cap 21)
  • Civil Procedure Rules 2010Order 12 Rule 7; Order 17 Rule 2; Order 51
  • Industrial Court Act 2011Section 12

Cases cited (9)

  • Nagle vs Fielden
    [1966] 2 QBD 633 at 648
  • Birket vs James
    [1978] AC 297
  • Allen vs Alfred McAlpine & Sons
    [1968] 1 ALL ER 543
  • Agip (Kenya) Limited vs Highlands Tyres Limited
    [2001] KLR 630
  • Saggo vs Bhari
    [1990] KLR 459
  • Shah vs Mbogo
    [1967] EA 116
  • Josephat Muthui Muli v Ezeetec Ltd
    [2014] eKLR
  • Ivita vs Kyumbu
    (1984) KLR 44
  • Venture Capital and Credit Ltd vs Consolidated Bank of Kenya Ltd
    (2006) eKLR
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

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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, "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.