Edward Ochieng v Dan Okumu [2020] KEELRC 1004 (KLR)
The bottom line
#A Kenyan employment court refused to dismiss a delayed case, blaming the claimant's lawyer and giving 90 days to set it down for hearing.
What this practically means
#Executive summary
#Key legal issues
#Dismissal for want of prosecution under Order 17 Rule 2
The application was rejected; although the delay was inordinate, it was attributable to the claimant's counsel and dismissal would cause a miscarriage of justice
The court noted the claimant had failed to set the suit down for hearing since the 22/6/2017 direction, prompting the 2019 application. However, the claimant explained the delay as his counsel's omission, evidenced difficulties tracing the court file and communicating with former counsel, and expressed willingness to prosecute. Balancing the overriding objective under Article 159(2)(b) against dismissal, the court opted for a conditional order allowing 90 days to set the matter down, failing which the suit would stand dismissed.
Whether the applicant's allegations of unexplained delay were rebutted
The applicant's invocation of Section 107 of the Evidence Act on burden of proof did not persuade the court, which accepted the respondent's explanation of missing files and miscommunication with former counsel
The applicant submitted that the respondent produced no evidence supporting his claims of missing files and advocate miscommunication, relying on Section 107 of the Evidence Act. The respondent relied on authorities requiring a party to demonstrate steps taken where an advocate has failed him. The court, on examination of the averments, found the delay was counsel's failure and chose to grant the claimant an opportunity to prosecute his claim rather than dismiss the suit.
Legal principles established
#- An inordinate delay caused by counsel's failure should not be visited upon the client where the client is willing to prosecute the case
- Dismissal for want of prosecution is a remedy of last resort to avoid miscarriage of justice; the court may instead grant a conditional window to set the suit down
Court orders
#- 1.Rejection of the application to dismiss the suit for want of prosecution
- 2.The matter to be set down for hearing within 90 days
- 3.In default of setting down within 90 days, the matter to stand dismissed
- Jurisdiction invoked
- Original jurisdiction; motion under Order 17 Rule 2 of the Civil Procedure Rules, with reference to Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Ochieng v Dan Okumu [2020] KEELRC 1004 (KLR)", Case Analysis (2020). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1004/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.