Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 2030 of 2013 (Nairobi Cause as filed 5 September 2013)· [2018] KEELRC 584 (KLR)

Francis Karimi Mugo v Athi River Water Services Board [2018] KEELRC 584 (KLR)

Employment and Labour Relations Court
23 November 2018
751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

An employment claim was dismissed after five years of inaction, showing Kenyan courts will not tolerate a litigant's unexplained delay or duplicate lawsuits.

What this practically means

#

Executive summary

#
The Claimant sued the Respondent on 5 September 2013 alleging unfair termination of employment and breach of contract. Service of summons was so delayed that the Court had to order fresh service in April 2016; the Respondent entered appearance through Kipkenda & Co. Advocates in September 2017 and filed its Memorandum of Response in November 2017. A preliminary objection on jurisdiction was dismissed for non-attendance, and a June 2018 application to transfer the Cause to the High Court was refused, the Court holding the cause of action was anchored on unfair termination/breach of contract. Directions issued in October 2018 required the filing of witness statements and documents; the Claimant did not comply. At the hearing on 22 November 2018 the Claimant was absent and his advocate sought an adjournment, explaining he could not reach the Claimant, and asked for seven days to attempt contact or cease acting. The Respondent opposed, citing the Cause's age, the Claimant's non-compliance and his frustration of previous hearings. The Court observed that the Claimant took about four years and a court order to serve summons, with no explanation for the inordinate delay, and that a litigant who does not follow his case for over five years shows disinterest. It further noted the Claimant had lodged another suit on the same facts against Nairobi Water & Sewerage Co. Ltd, in which judgment was delivered on 26 October 2018, conduct the Court condemned as abuse of process. The adjournment was declined and, the Claimant being absent, the Cause was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether dismissal for want of prosecution was warranted despite the advocate's request for an adjournment

Holding

The adjournment was declined and the Cause dismissed because the delay was attributable to the litigant, not the advocate

Reasoning

The record showed the Claimant took about four years and a court order to serve summons and pleadings, with no explanation. The Claimant also failed to comply with directions to file witness statements and had frustrated previous hearings. A litigant who does not follow up a case for over five years demonstrates disinterest; the Court cannot compel prosecution and may dismiss such a suit.

p. 2
02

Whether the Claimant's filing of a second suit on the same facts against Nairobi Water & Sewerage Co. Ltd constituted abuse of process

Holding

The Court noted the parallel suit and condemned the conduct as abuse of court process

Reasoning

The Claimant had lodged another case based on the same facts against an entity operating under the statutory regulation of the Respondent, and judgment had been delivered in that suit on 26 October 2018. The Court regarded such multiplicity of suits on the same facts as litigants playing roulette with the Court and an abuse of process, reinforcing the decision to dismiss.

p. 2

Legal principles established

#
  • A case belongs to the litigant; the advocate is only an agent, and unexplained prolonged inaction by a litigant evidences disinterest justifying dismissal
  • The Court cannot force a litigant to prosecute his or her case and may dismiss a suit where the litigant is indifferent
  • Instituting parallel suits based on the same facts against related entities amounts to abuse of court process

Court orders

#
  1. 1.The application for adjournment sought on 22 November 2018 is declined
  2. 2.The Cause is dismissed with costs to the Respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination of employment and breach of contract (upheld in prior ruling declining transfer to the High Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Karimi Mugo v Athi River Water Services Board [2018] KEELRC 584 (KLR)", Case Analysis (2018). Cause No. 2030 of 2013 (Nairobi Cause as filed 5 September 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/584/eng@2018-11-23

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