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ELRCDismissedCause No 185 of 2018· [2021] KEELRC 1008 (KLR)

Edward Mbalanya Kafuna v Ideal Security Services Ltd [2021] KEELRC 1008 (KLR)

Employment and Labour Relations Court
16 September 2021
508 words in judgment
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The bottom line

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A Kenyan employment court refused to dismiss a delayed lawsuit because the claimant proved they kept chasing hearing dates during COVID-19 and court backlogs.

What this practically means

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Executive summary

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The respondent in an employment suit filed a notice of motion dated 26 November 2020 seeking dismissal of the claimant's suit for want of prosecution. The applicant argued that the suit, filed on 5 February 2018, had not progressed: no hearing date had been set since the statement of defence was filed on 13 March 2018. The claimant opposed the application by replying affidavit, showing that the suit was fixed for mention on 21 November 2018; that throughout 2019 advocates repeatedly attended the registry and were told no dates were available; that letters seeking a mention date were written to the Deputy Registrar on 13 March 2020 and an email sent on 9 February 2021; and that access to the registry had been hampered by the COVID-19 pandemic. The applicant filed no supplementary affidavit to controvert these facts. The court, per Mathews N. Nduma J, took judicial notice of the backlog at the Nairobi Employment and Labour Relations Court, which was still expediting suits filed in 2016 and 2017 and was not allocating hearing dates for matters filed in 2018. Applying the Utalii Transport Company Limited v NIC Bank test, the court held the claimant was not guilty of indolence or willful neglect, found the application devoid of merit, dismissed it, and directed that the suit be set down for hearing on the merits on the date of delivery of the ruling.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

The application was dismissed; the claimant had taken reasonable steps to prosecute the suit and the delay was attributable to the court's own case backlog and the COVID-19 pandemic, not to indolence

Reasoning

The claimant demonstrated that the suit was fixed for mention in November 2018, that advocates repeatedly attended the registry in 2019 only to be told no dates were available, and that letters and emails seeking a mention date were sent in March 2020 and February 2021. The applicant filed no supplementary affidavit to challenge these facts. The court took judicial notice that hearing dates were not being allocated for 2018 filings because 2016 and 2017 suits were still being expedited.

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02

Whether the claimant was guilty of indolence and willful neglect per Utalii Transport Co. Ltd v NIC Bank

Holding

The Utalii Transport test was not satisfied; the claimant's conduct did not amount to indolence or willful neglect

Reasoning

The court applied the principle from Utalii Transport Company Limited v NIC Bank regarding dismissal for want of prosecution, but found that the facts—unanswered requests for dates, registry backlog, and COVID-19 restrictions—did not establish the indolence and willful neglect that test targets. The unchallenged replying affidavit evidence weighed decisively against the applicant.

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Legal principles established

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  • A claimant who has diligently sought hearing dates but been unable to obtain them due to registry constraints is not guilty of indolence or willful neglect warranting dismissal for want of prosecution

Court orders

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  1. 1.The application by the respondent is dismissed for lack of merit
  2. 2.The suit to be set down for hearing on the merits on the date of delivery of the ruling

Authorities

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Cases cited (1)

  • Utalii Transport Company Limited and 3 Others –vs- NIC Bank & Another
    [2014] eKLR

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, "Edward Mbalanya Kafuna v Ideal Security Services Ltd [2021] KEELRC 1008 (KLR)", Case Analysis (2021). Cause No 185 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1008/eng@2021-09-16

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