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ELRCDismissedNairobi HCCC 385 of 2013 (transferred to the Employment and Labour Relations Court)· [2020] KEELRC 1164 (KLR)

Maria Shitandi Wangara v Equity Bank Limited & Another [2020] KEELRC 1164 (KLR)

Employment and Labour Relations Court
12 May 2020
MOMAUREEN ONYANGO
2,006 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court refused to reinstate a suit dismissed for want of prosecution because the claimant waited three years without acting and then delayed further.

What this practically means

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Executive summary

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The Applicant filed a notice of motion on 30th April 2019 seeking to set aside an order of 4th December 2017 dismissing her suit for want of prosecution, to reinstate the cause for inter partes hearing on a priority basis, and to recover costs. Her suit, originally Nairobi HCCC 385 of 2013, had been transferred from the High Court to the Employment and Labour Relations Court. She claimed she was never notified of the transfer, that the file went missing, and that neither she nor her advocates were served with the notice to show cause before dismissal. The Respondents opposed, contending that her advocates were present when transfer directions were given on 20th January 2015, that she took no steps for three years, and that the application was an abuse of process marred by inordinate and unexplained delay. The court framed a single issue: whether the Applicant met the threshold for reinstatement. Applying the principles in Utalii Transport Company Limited v NIC Bank Limited, the court found the three-year inaction unexplained: the record showed her advocates perused the file on 18th May 2015 citing the correct new file number, and no evidence of efforts to trace the allegedly missing file was produced. The reinstatement application itself was filed one year and four months after dismissal without justification. Concluding that the Respondents would be prejudiced and that the Applicant was neither diligent nor truthful, the court dismissed the application with costs to the Respondents.

Key legal issues

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01

Whether the Applicant met the threshold for reinstatement of a suit dismissed for want of prosecution

Holding

The application was dismissed; the delay was inordinate and inexcusable and the Applicant was not candid

Reasoning

The court applied the five Utalii Transport principles. The court record showed the claimant's advocates had perused the file on 18th May 2015 citing the correct transferred file number, undermining the claim of ignorance of the transfer. No evidence showed efforts to trace the alleged missing file. The reinstatement application was filed one year and four months after dismissal with no justification, and the Respondents would be prejudiced. The Applicant was found not to deserve the court's discretion.

p. 4

Legal principles established

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  • In reinstatement applications the court will not assist the indolent but will serve the interest of substantive justice on behalf of all parties, applying the Utalii Transport principles (intentional/contumelious delay, abuse of court, inordinate and inexcusable delay, prejudice and fair-trial risk)

Court orders

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  1. 1.The application for reinstatement is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 2(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • David Kemei v Energy Regulatory Commission & 2 Others
    [2017] eKLR
  • Kastem Company Limited v Ndala Shop Limited & 2 Others
    [2018] eKLR
  • Chali Thali Ngala v Republic & 4 Others
    [2013] eKLR
  • Utalii Transport Company Limited & 3 Others vs. NIC Bank Limited & Another
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a cause transferred from the High Court (Nairobi HCCC 385 of 2013); reinstatement application under Order 17 rule 2 of the Civil Procedure Rules

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, "Maria Shitandi Wangara v Equity Bank Limited & Another [2020] KEELRC 1164 (KLR)", Case Analysis (2020). Nairobi HCCC 385 of 2013 (transferred to the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1164/eng@2020-05-12

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