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ELRCAllowedCause No. 1284 of 2013· [2019] KEELRC 654 (KLR)

James Mbarwa Dudah & 3 others (Suing on behalf of themselves & 82 others v Attorney General & 2 others [2019] KEELRC 654 (KLR)

Employment and Labour Relations Court
11 October 2019
RSRadido Stephen
539 words in judgment
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The bottom line

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Kenya's Employment Court revived 86 workers' case, ruling a suit cannot be dismissed for want of prosecution once the claimants' side has already closed its case.

What this practically means

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Executive summary

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This ruling by Radido J in the Employment and Labour Relations Court at Nairobi determined an unopposed application dated 16 April 2019 by the Claimants, four named plaintiffs suing on behalf of themselves and 82 others, seeking review and setting aside of an order dismissing their cause for want of prosecution on 6 April 2017. The underlying cause, Cause No. 1284 of 2013 against the Hon Attorney General, the Principal Secretary, Ministry of Health, and NASCOP, had a chequered hearing history: the Claimants presented two witnesses on 23 January 2015, later closed their case when further witnesses were unavailable, and the Respondents' case, fixed for 6 May 2015, did not proceed as the Respondents were not ready. After successive adjournments on which neither party attended, the Court on 6 April 2017 dismissed the suit on the Respondents' application. The Claimants, who said they only learned of the dismissal on 26 March 2019 and blamed their previous advocates' negligence and misrepresentation, moved to review the dismissal. The Respondents, though served, neither responded nor attended. The Court held that since the Claimants had closed their case, the correct procedure was to take the Respondents' case and prepare judgment, not to dismiss the suit. The motion dated 16 April 2019 was allowed, Githongori & Harrison Associates were directed to formalise their representation, and the file was to be placed before the Principal Judge for allocation of a judge to take the Respondents' case. Costs were awarded in the cause.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution on 6 April 2017 was proper

Holding

The dismissal was made in error because the Claimants had closed their case on 23 January 2015; the suit could not be dismissed for want of prosecution when only the Respondents' case was outstanding

Reasoning

The Court reviewed the record and found the Claimants had closed their case on 23 January 2015, leaving only the Respondents' case to be heard. Dismissing the whole suit for want of prosecution on the Respondents' application was therefore procedurally erroneous. The proper course was to proceed with the Respondents' case, in the Claimants' absence if necessary, and prepare judgment. The review application was unopposed, the Respondents having neither responded nor attended the hearing.

p. 1

Legal principles established

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  • Where a claimant has closed its case, the correct procedure upon the claimant's absence is for the court to take the respondent's case and prepare judgment, not to dismiss the suit for want of prosecution

Court orders

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  1. 1.Allowed the motion dated 16 April 2019
  2. 2.Directed the firm of Githongori & Harrison Associates Advocates to apply to formalise their representation of the Claimants
  3. 3.Directed that the file be placed before the Principal Judge to allocate a judge to take the Respondents' case, the trial Judge no longer being based in Nairobi
  4. 4.Costs in the cause
Jurisdiction invoked
Inherent review powers of the Employment and Labour Relations Court over its own proceedings (Cause No. 1284 of 2013)

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, "James Mbarwa Dudah & 3 others (Suing on behalf of themselves & 82 others v Attorney General & 2 others [2019] KEELRC 654 (KLR)", Case Analysis (2019). Cause No. 1284 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/654/eng@2019-10-11

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