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ELRCDismissedNot stated in the judgment· [2020] KEELRC 1213 (KLR)

Henry Waruku v Pride Kings Security [2020] KEELRC 1213 (KLR)

Employment and Labour Relations Court
30 April 2020
769 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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An Employment Court in Nairobi refused to revive a lawsuit the claimant left idle for over two years without ever serving the other side.

What this practically means

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Executive summary

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The applicant (claimant) sought to set aside, review and/or vacate the order of 3rd December 2018 dismissing its suit, filed on 27th October 2016, for want of prosecution. The application was supported by an affidavit of the claimant's advocate, Mr. Alfred Kipkirui Chepkwony, who explained that an advocate sent to file an affidavit of service on 3rd December 2018 failed to do so, the affidavit being filed only on 4th December 2018, after dismissal. The respondent opposed through grounds of opposition filed on 11th June 2019, contending the application was defective, that summons and statement of claim were never served, and that no proper grounds for review were advanced. The court, Mathews N. Nduma J, noted that although the suit had been filed on 27th October 2016, summons to enter appearance and the memorandum of claim were never served on the respondent; counsel holding brief conceded on 3rd December 2018 that the suit had not been served, prompting dismissal. The court found no explanation for the failure to serve for over two years and no justifiable reason to reinstate, holding that reinstatement would vex and be unjust to the respondent, whose right to a fair hearing without undue delay under Article 50(1) of the Constitution would be compromised. The delay was held to defeat the overriding objective of expeditious determination, citing Stephen Bernard Oduor vs Atwo Forwarder (2002) eKLR. The application was dismissed with no order as to costs, the ruling being delivered online pursuant to COVID-19 measures.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside

Holding

The application was dismissed; the applicant gave no explanation for failing to serve the suit for over two years, and reinstatement would prejudice the respondent.

Reasoning

The suit was filed on 27th October 2016 but summons and statement of claim were never served on the respondent. By 3rd December 2018, when the claimant's counsel conceded the suit was never served, more than two years had elapsed. The court found no justifiable reason for the delay, held that reinstatement would be vexatious and unjust to the respondent's right to a fair hearing under Article 50(1), and that the delay defeated the overriding objective.

p. 1

Legal principles established

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  • Inordinate delay by a claimant to serve a suit defeats the overriding objective of expeditious determination of suits
  • Undue delay in prosecuting a suit violates the respondent's right to a fair hearing under Article 50(1) of the Constitution

Court orders

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  1. 1.The application lacks merit and is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 50(1)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure Act (chapter 21 of the Laws of Kenya)Section 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Stephen Bernard Oduor vs Atwo Forwarder
    (2002) eKLR
Jurisdiction invoked
Inherent jurisdiction to set aside/review orders dismissing suits; the ruling also references Article 159(2)(d), Article 48, Article 50(1) of the Constitution, Section 18 of the Civil Procedure Act and Order 21 rule 1 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, "Henry Waruku v Pride Kings Security [2020] KEELRC 1213 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1213/eng@2020-04-30

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