Stella Chelang’at Korir v Bunson Travel Services Limited [2020] KEELRC 280 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether dismissal would conform with Article 159 of the Constitution and the overriding objective
Dismissing the suit would not serve expeditious justice; the parties were instead allowed to fix the matter for hearing from the Court's diary
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.
Legal principles established
#- 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
#- 1.The Respondent's application dated 2/3/2020 seeking dismissal of the suit for want of prosecution is dismissed
- 2.Parties allowed to set down the case for hearing as per the Court's diary
- 3.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, rule 16(3); Civil Procedure Act sections 1A, 1B and 3A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.