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ELRCOtherNot stated in the judgment (ELRC cause filed 6th February 2017)· [2021] KEELRC 437 (KLR)

Kevin Oruo v Family Bank Limited [2021] KEELRC 437 (KLR)

Employment and Labour Relations Court
19 November 2021
2,076 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court spared a dormant 2017 lawsuit from dismissal but gave the claimant just 30 days to revive it or lose it forever.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 1st March 2021 under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules seeking dismissal of the Claimant's suit, filed on 6th February 2017, for want of prosecution, arguing that no step had been taken since the Defence was filed on 10th April 2017 and that the delay was inexcusable and prejudicial. The Claimant opposed, attributing the delay to inability to raise legal fees and to the COVID-19 pandemic's scaling down of court operations, and invoking his right to a fair hearing under Article 50 of the Constitution. The sole issue was whether the suit should be dismissed for want of prosecution. Applying Ivita v Kyumbu, the court held that an applicant must satisfy the one-year inactivity threshold under Rule 16(3), then demonstrate inordinate and inexcusable delay, prejudice, and that a fair trial is no longer achievable. The court found the last substantive step was a letter of 31st October 2018 seeking a mention date, and held the delay inexcusable: the Claimant could have acted in person if unable to pay legal fees, and the matter was inactive before the pandemic, so he could not hide behind COVID-19. Equity aids the vigilant, not the indolent, and Article 159 is no refuge for indolence. However, taking judicial notice of the case backlog, whereby 2017 files were only then being fixed for hearing, the court declined outright dismissal. It gave the Claimant a final opportunity to fix the suit for pre-trial within 30 days, failing which the suit would automatically stand dismissed, and awarded the Respondent costs of the application assessed at Kshs.10,000/- payable before fixing for hearing. Delivered virtually at Nairobi on 19th November 2021 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

The delay of over four years was inordinate and inexcusable, but the court declined immediate dismissal and instead granted a final opportunity to fix pre-trial within 30 days, failing which the suit would automatically stand dismissed

Reasoning

The court found the delay inexcusable: lack of finances was not a valid excuse since the Claimant could act in person, and COVID-19 could not justify inactivity predating the pandemic. However, taking judicial notice of case backlog and the fact that 2017 files were only now being fixed for hearing, the court exercised discretion in favour of a final chance rather than dismissal.

p. 3
02

Threshold for dismissal for want of prosecution

Holding

The applicant must satisfy the one-year inactivity threshold under Rule 16(3), then prove inordinate and inexcusable delay, prejudice, and that a fair trial is no longer possible

Reasoning

Relying on Ivita v Kyumbu and the ELRC Procedure Rules Rule 16, the court restated that the applicant must show the one-year inaction, inordinate and inexcusable delay, prejudice to himself, and that justice cannot be done due to prolonged delay before dismissal is granted.

p. 2

Legal principles established

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  • An applicant for dismissal for want of prosecution must meet the one-year threshold under Rule 16(3), then show inordinate and inexcusable delay, prejudice, and that a fair trial cannot be achieved
  • Equity aids the vigilant, not the indolent; a litigant cannot rely on Article 159 to excuse indolence

Court orders

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  1. 1.Claimant given a final opportunity to fix the suit for pre-trial within 30 days, failing which the suit will automatically stand dismissed
  2. 2.Claimant to pay the Respondent's costs of the application assessed at Kshs.10,000/- before fixing the suit for hearing

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment and Labour Relations Court (Procedure) RulesRules 15, 16(1)-(4) and Rule 16 generally
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (6)

  • Ivita v Kyumbu
    (1984) KLR 441
  • Argan Wekesa Okumu v Dima College Limited & 2 Others
    (2015) eKLR
  • Naftali Onyango v National Bank of Kenya
    (2005) eKLR
  • Mwangi S. Kimenyi v Attorney General
    Civil Suit No. 720 of 2009
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    (2013) eKLR
  • Kiiru M’mugambi & 39 others v Moses Kirima Meenye & Kirima Advocates & 3 Others
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 16(3); discretionary jurisdiction over its own suits

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, "Kevin Oruo v Family Bank Limited [2021] KEELRC 437 (KLR)", Case Analysis (2021). Not stated in the judgment (ELRC cause filed 6th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/437/eng@2021-11-19

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