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ELRCAllowedNot stated in judgment· [2018] KEELRC 1036 (KLR)

Login Gimonde Lwandege & 19 others v Attorney General & another [2018] KEELRC 1036 (KLR)

Employment and Labour Relations Court
28 September 2018
ANAbuodha Jorum Nelson
446 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 reinstated an employee's case, ruling that dismissing a suit for want of prosecution is a drastic step reserved for clear cases of lost interest.

What this practically means

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Executive summary

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The suit had been dismissed for want of prosecution on 25th September 2017 by Ndolo J, on the application of the respondent when only the respondent was present at the hearing. The claimant's counsel sought setting aside of that order, explaining that the suit was scheduled for mention on 19th October 2017 before the Deputy Registrar, but was not listed that day; upon perusal of the file counsel discovered the matter had been listed for hearing on 25th September 2017 before Ndolo J contrary to the summons to attend court. The court perused the record and found that the last minutes before dismissal, dated 23rd May 2017, showed the matter listed before Mbaru J but not proceeding because the claimant was indisposed, with parties directed to take a fresh date at the registry. Critically, the court found no minute on record showing how the 25th September 2017 date was fixed or by which party, meaning the claimant could be right that the date was fixed by the court and not served. The court held that dismissal for want of prosecution is a drastic order depriving a claimant of the right of audience, to be made only in clear and obvious cases where loss of interest is demonstrated, and noted the suit had remained active with adjournments occasioned by either side. The application was allowed, the dismissal set aside, with no order as to costs, and parties directed to set the suit down for hearing on a priority basis.

Key legal issues

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01

Whether the dismissal for want of prosecution should be set aside

Holding

The dismissal was set aside because the fixing and service of the 25th September 2017 hearing date was unexplained and the suit had remained active with adjournments occasioned by either side.

Reasoning

The court perused the record and found no minute showing how the 25th September 2017 date was fixed or by which party. The claimant may have been right that the court fixed the date without service. Dismissal for want of prosecution is drastic, extinguishing a claimant's right of audience, and should only issue where loss of interest is clear and obvious. The record showed an active suit with adjournments attributable to both sides, constituting an excusable case for exercising discretion to reinstate.

p. 1

Legal principles established

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  • Dismissal for want of prosecution is a drastic order depriving a claimant of the right of audience, to be made only in clear cases where the claimant has lost interest
  • A dismissal for want of prosecution should be made only where the claimant has clearly lost interest in the suit

Court orders

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  1. 1.The order dismissing the suit for want of prosecution on 25th September, 2017 is set aside
  2. 2.No order as to costs
  3. 3.Parties to set the suit down for hearing on priority basis
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders (not expressly cited in the judgment)

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, "Login Gimonde Lwandege & 19 others v Attorney General & another [2018] KEELRC 1036 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1036/eng@2018-09-28

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