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ELRCOtherNot stated in the judgment· [2016] KEELRC 915 (KLR)

Ferdinand Anga’nya Yatoli v Hennesis Hotel [2016] KEELRC 915 (KLR)

Employment and Labour Relations Court
24 June 2016
NMNzioki wa Makau
860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a worker's case that sat idle for two years without explanation, and ordered the claimant to pay the other side's costs.

What this practically means

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Executive summary

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This first-instance ruling of the Employment and Labour Relations Court at Nairobi, delivered by Nzioki wa Makau J on 24th June 2016, determined a notice of motion dated 10th December 2015 in which the Respondent/Applicant, John Maina Mburu, sought dismissal of the suit for want of prosecution. The application, supported by the affidavit of John Maina Mburu, was unopposed. Counsel for the Applicant, Mr Wamae, submitted that the Claimant/Respondent had been inactive for over two years, relying on Caroline Kinyua v Susan Wanjiku and Patrick Ayisi v Madhav Bhalla. The court noted that the case had last been fixed for hearing on 19th May 2014, when it was stood over generally in the parties' absence. Applying the test in Ivita v Kyumbu as adopted by Njuguna J - whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay - and the balancing framework set out by Gikonyo J drawing on Articles 48, 50 and 159 of the Constitution, the court found no reason or excuse proffered by the Claimant, who had been mute despite proper service of the motion and hearing notices. The court held that the sword of Damocles should not hang over a party incessantly, found merit in the motion, dismissed the suit, and awarded costs to the Respondent/Applicant.

Key legal issues

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01

Dismissal of suit for want of prosecution

Holding

The suit was dismissed where the Claimant had been inactive for over two years and offered no excuse for the delay despite proper service of notices.

Reasoning

The court applied the Ivita v Kyumbu test as adopted by Njuguna J and Gikonyo J: whether the delay is prolonged and inexcusable, and whether justice can nonetheless be done. The Claimant had been silent since the case was stood over generally on 19th May 2014 and gave no explanation. The court balanced the prejudice of dismissal against the hardship to the Applicant, noting that the sword of Damocles should not hang over a party incessantly. Finding the motion merited, the court dismissed the suit with costs.

p. 3

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay

Court orders

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  1. 1.The suit is dismissed for want of prosecution
  2. 2.Costs of the application to the Respondent/Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 50 and 159

Cases cited (4)

  • Caroline Kinyua v Susan Wanjiku [2015] eKLR
    [2015] eKLR
  • Patrick Ayisi v Madhav Bhalla [2014] eKLR
    [2014] eKLR
  • Ivita v Kyumbu (1984) KLR 441
    (1984) KLR 441
  • Jimmy Wafula Simiyu v Fidelity Commercial Bank Limited [2014] eKLR
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court; the judgment does not cite a specific jurisdictional provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ferdinand Anga’nya Yatoli v Hennesis Hotel [2016] KEELRC 915 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/915/eng@2016-06-24

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