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ELRCDismissedNot stated in extract· [2019] KEELRC 1642 (KLR)

Fred Wangila Nyangori v Church World Service (CWS)/Resettlement Support Centre (RSC) Africa [2019] KEELRC 1642 (KLR)

Employment and Labour Relations Court
20 May 2019
MOMAUREEN ONYANGO
844 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 refused to dismiss a stalled lawsuit because the employer could not show the delay actually harmed its case.

What this practically means

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Executive summary

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The Respondent/Applicant moved the court by an application dated 12 November 2018 seeking dismissal of the Claimant's suit for want of prosecution. It was supported by the affidavit of Grace Wairimu, who deponed that the last activity on the file was on 24 March 2017 when the Claimant filed a Reply to the defence. The Applicant submitted that the suit had not been prosecuted for over a year and that the Claimant's excuse that the court diary was closed was unsupported by evidence, invoking Article 159 of the Constitution that justice shall not be delayed. The Claimant opposed, contending that the matter, filed in 2017, was only about a year old, that the rules prescribe no three-month timeline, and that dismissal would not serve the interest of justice. The court applied the equitable maxim that equity aids the vigilant and not the indolent, and the standard of reasonable diligence, finding that the Claimant had indeed gone to sleep on the suit, which had been inactive for slightly over one and a half years and was ripe for dismissal. However, following the Court of Appeal's decision in Ivita vs. Kyumbu, the court held that even where delay is proved, dismissal requires the defendant to show it will be prejudiced by the delay. The Respondent advanced no such prejudice, and the court was alive to the difficulty of obtaining hearing dates for 2017 cases, priority being given to older matters. The application was denied, with directions that the matter be listed before the Deputy Registrar for fixing of a hearing date on a priority date. Judgment was delivered at Nairobi on 20 May 2019 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the delay of over one and a half years justified dismissal for want of prosecution

Holding

Delay was proved but dismissal was refused because no prejudice was shown and the suit had not been heard on merit

Reasoning

The file showed no movement since 24 March 2017 when the Claimant filed a Reply, and the Claimant's assertion that the court diary was closed was unsupported by evidence. However, following Ivita vs. Kyumbu, a defendant seeking dismissal must satisfy the court that it will be prejudiced by the delay. The Respondent advanced no such reason, and the court acknowledged the difficulty of obtaining hearing dates for 2017 cases, so dismissal would not serve the interest of justice.

p. 2
02

Whether the Claimant exercised reasonable diligence

Holding

The Claimant had not exercised reasonable diligence; he slept on his claim until awoken by the application

Reasoning

Applying the equitable maxim that equity aids the vigilant and not the indolent, and the standard of reasonable diligence in Snell's Equity, the court found the Claimant indolent: after filing a Reply on 24 March 2017 there was no activity until the Respondent's application of 12 November 2018. Nonetheless, indolence alone did not justify dismissal absent demonstrated prejudice.

p. 1

Legal principles established

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  • Even where delay in prosecution is proved, the court may excuse it in the interest of justice if no prejudice is shown by the defendant

Court orders

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  1. 1.The application dated 12th November 2018 seeking dismissal of the suit for want of prosecution is denied
  2. 2.The matter be listed before the Deputy Registrar for fixing of a hearing date on a priority date

Authorities

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Legislation

  • Constitution of KenyaArticle 159

Cases cited (1)

  • Ivita vs. Kyumbu
    [1975] eKLR
Jurisdiction invoked
Inherent jurisdiction to dismiss suits for want of prosecution; Article 159 of the Constitution cited by parties

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, "Fred Wangila Nyangori v Church World Service (CWS)/Resettlement Support Centre (RSC) Africa [2019] KEELRC 1642 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1642/eng@2019-05-20

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