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ELRCDismissedNot stated in judgment (the affidavit refers to related Milimani PMCC 650 of 2012)· [2018] KEELRC 383 (KLR)

Gilbert Koech Kipyegon v East African Logistics Limited [2018] KEELRC 383 (KLR)

Employment and Labour Relations Court
7 December 2018
MOMAUREEN ONYANGO
2,839 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 reinstate a claimant's case because he could not explain years of unexplained inaction before and after its dismissal.

What this practically means

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court by Notice of Motion dated 6th July 2018 seeking to set aside and vary the court's orders of 20th April 2016 dismissing his claim for want of prosecution, and to reinstate the suit. Through counsel's affidavit, he explained that he had concluded his testimony by 14th May 2013, that the court file had gone missing, that he only discovered the dismissal on 12th December 2017, and that the hearing notice dated 7th March 2016 was never served on him or his advocates. He invoked rule 16(1) of the ELRC (Procedural Rules) 2016, Article 47 of the Constitution and the Fair Administrative Action Act, and authorities on inordinate delay and prejudice, including Ivita v Kyumbu. The Respondent opposed through Grounds of Opposition and submissions, relying on Utalii Transport and the Birket v James principles, contending there was inordinate, intentional and unexplained delay, no proof of efforts to trace the file, and prejudice from trying a seven-year-old matter. Maureen Onyango J framed two issues: whether a reasonable explanation for the delay was offered, and whether the applicant was entitled to the orders sought. The court noted the application was supported by counsel's rather than the claimant's affidavit, that the letter of 24th January 2018 related to a different case (Milimani PMCC 650 of 2012), and that there was over two years of unexplained delay before dismissal and over twenty months after it. The application was dismissed with no orders for costs on 7th December 2018.

Key legal issues

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01

Reasonable explanation for delay

Holding

No reasonable explanation was given; the claimant's evidence of pursuing the file was unsupported

Reasoning

The application was supported only by counsel's affidavit, with no explanation why the claimant did not swear it himself. The only annexures were two letters, one not shown to have been filed and the other relating to a different case (Milimani PMCC 650 of 2012). No action was shown between 4th October 2013 and the 20th April 2016 dismissal, nor for over 20 months thereafter.

p. 4
02

Entitlement to reinstatement orders

Holding

Application dismissed; discretion not exercised in claimant's favour

Reasoning

Applying the Birket v James principles (inordinate delay, reasonable explanation, prejudice) plus the requirement of demonstrated interest in prosecuting the case, the court found the claimant indolent and the application without merit. No adequate proof of the missing file or of service issues was presented.

p. 4

Legal principles established

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  • In an application to reinstate a suit dismissed for want of prosecution, the applicant must show inordinate delay, a reasonable explanation for it, prejudice to the parties, and a demonstrable interest in prosecuting the case
  • Unexplained delay both before and after dismissal will defeat an application for reinstatement

Court orders

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  1. 1.The Notice of Motion dated 6th July 2018 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedural Rules) 2016Rule 16(1)
  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action ActSection 4
  • Civil Procedure RulesOrder 17 rule 2

Cases cited (8)

  • Moses Mwangi Kimari v Shammi Kanjirapparambil Thomas & 2 Others
    [2014] eKLR
  • Azhar Mohammed Sheikh & 8 others v Velji Narshi Shah & Another
    [2017] eKLR
  • Ivita vs. Kyumbu
    [1975]
  • Utalii Transport Company Limited & 3 Others V. NIC Bank Limited & Another
    [2014] eKLR
  • NAGLE v FIELDEN
    [1966] 2 QBD 633
  • BIRKET v JAMES
    [1978] A.C. 297
  • Mwangi S. Kimenyi vs. Attorney General & Another
    [2014] eKLR
  • Jason Mungai Kamau -V- Jane Kamau & 4 Others
    [2008] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedural Rules) 2016; inherent discretion to set aside its own dismissal for want of prosecution

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, "Gilbert Koech Kipyegon v East African Logistics Limited [2018] KEELRC 383 (KLR)", Case Analysis (2018). Not stated in judgment (the affidavit refers to related Milimani PMCC 650 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/383/eng@2018-12-07

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