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ELRCDismissed· [2020] KEELRC 280 (KLR)

Stella Chelang’at Korir v Bunson Travel Services Limited [2020] KEELRC 280 (KLR)

Employment and Labour Relations Court
15 October 2020
1,224 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 delayed lawsuit because the backlog at the court registry, not the claimant, caused the delay.

What this practically means

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Executive summary

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The Respondent in an employment dispute before the Employment and Labour Relations Court, Nairobi, brought an application dated 2/3/2020 seeking dismissal of the Claimant's suit for want of prosecution and costs. The Respondent argued that despite directions issued on 18/9/2019 to file a witness statement, the Claimant had taken no steps to prosecute the suit for about a year, breaching sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(b) of the Constitution, that she was indolent, and that the Respondent continued to suffer anxiety, cost and disadvantage. Relying on George Gatere Kibata, the Respondent invoked the statutory threshold of rule 16(3) of the ELRC (Procedure) Rules and Order 17 rule 2 of the Civil Procedure Rules, since seventeen months had elapsed. The Claimant opposed, contending her advocates had repeatedly sought hearing dates but the Nairobi registry had not opened the diary for matters filed in 2018 onwards, the Court then hearing only cases filed in 2016 and below; she relied on authorities where similar applications were dismissed for that reason. Justice Hellen Wasilwa, delivering judgment on 15 October 2020 via Zoom, took judicial notice of the Court's work overload and its policy of prioritising cases over five years old, found the Claimant had not deliberately delayed, held the application had no merit, and dismissed it. The parties were allowed to set the case down for hearing from the Court's diary, with costs in the cause.

Key legal issues

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01

Whether the Respondent satisfied the threshold for dismissal for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules and rule 16(3) of the ELRC (Procedure) Rules

Holding

The application failed; although more than twelve months had elapsed, the Claimant's delay was not deliberate and was explained by the Court's diary constraints

Reasoning

The Respondent relied on the twelve-month lapse in rule 16(3) and the three-part threshold from George Gatere Kibata, including inordinate and inexcusable delay and grave injustice. The court took judicial notice that the registry was prioritising cases filed over five years earlier, so this 2018 matter could not be fixed for hearing. The Claimant's advocates' attempts to obtain dates were accepted, hence the delay was excusable and no grave injustice to the Respondent justified dismissal.

p. 2
02

Whether dismissal would conform with Article 159 of the Constitution and the overriding objective

Holding

Dismissing the suit would not serve expeditious justice; the parties were instead allowed to fix the matter for hearing from the Court's diary

Reasoning

The Claimant argued that dismissal would contravene Article 159's command of expeditious yet substantive justice. The court acknowledged registry work overload and its own policy of prioritising old cases. Balancing the Respondent's anxiety against the Claimant's risk of being 'banished from the Court' without a hearing, the court exercised its discretion in favour of prosecution of the suit rather than its dismissal.

p. 2

Legal principles established

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  • A suit should only be dismissed for want of prosecution where the delay is inordinate, without justifiable explanation, or where the suit is an abuse of the court process
  • Where delay in prosecuting a suit is attributable to the court's own inability to give hearing dates, the claimant is not guilty of inordinate, deliberate delay and dismissal does not lie

Court orders

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  1. 1.The Respondent's application dated 2/3/2020 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.Parties allowed to set down the case for hearing as per the Court's diary
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 17 rule 2
  • Employment and Labour Relations Court (Procedure) RulesRule 16(3)

Cases cited (8)

  • George Gatere Kibata vs. George Kuria & Another
    [2017] eKLR
  • Nilesh Premchand Mulji Shah & Another T/A Ketan Emporium vs. M.D. Popat & Others & Another
    [2016] eKLR
  • Kimari vs. Shammi Kanjirapparambil Thomas & 2 Others
    [2014] eKLR
  • Anthony Kaburi Kario & 2 Others vs. Ragati Tea Factory Company Limited & 10 Others
    [2014] eKLR
  • Shiphila Wairire Gakaara vs. Industrial & Commercial Development Corporation & Another
    [2016] eKLR
  • Susan Wairimu vs. Gladways Academy & Another
    [2019] eKLR
  • Hilda Anyika Isuruti vs. Poonam Chaudhary
    [2018] eKLR
  • Paul Mutisya vs. Kenmet Limited
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, rule 16(3); Civil Procedure Act sections 1A, 1B and 3A

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, "Stella Chelang’at Korir v Bunson Travel Services Limited [2020] KEELRC 280 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/280/eng@2020-10-15

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