Douglas Onwonga Ogeto v Security Guards Services Limited [2021] KEELRC 1281 (KLR)
The bottom line
#A Kenyan employment case was dismissed after four years of inaction, showing courts will throw out forgotten claims even when Article 159 is invoked.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's application for dismissal of the suit for want of prosecution was merited under Rule 16 of the ELRC (Procedure) Rules, 2016
The application was merited; the suit was dismissed for want of prosecution with costs
The court applied the Utalii Transport principles on dismissal for want of prosecution. The claim was filed on 15th May 2017 and the Claimant took no steps to prosecute it; the Claimant and his advocate missed multiple mediation sessions, prompting a Certificate of Non-Compliance. Counsel's excuse of a crashed office email was unsupported by evidence, and no steps were taken even to enquire by phone. The Claimant personally showed no interest in prosecuting the suit.
Whether the alleged crashing of Counsel's office email excused non-attendance at mediation sessions
It did not; the excuse was unsupported and inconsistent with Counsel's total inaction
Counsel alleged that his email address crashed and he did not receive the mediator's correspondence. The court found no evidence supporting the claim and considered it curious that Counsel took no steps to follow up the matter even by phone. The mediator personally telephoned Counsel and the Claimant, which demonstrated their laxity rather than excusing it.
Whether the Claimant's own interest in prosecuting the case was shown
No; only Counsel responded, and the Claimant personally gave no assurance of interest
The court noted that the replying affidavit was sworn by Counsel rather than the Claimant. There was no evidence that the Claimant, as opposed to his advocate, was interested in prosecuting the case, and the court held that the Claimant himself needed to assure the court of that interest. No step was taken from the Certificate of Non-Compliance until the application was filed.
Legal principles established
#- A party who files a suit must remain vigilant in prosecuting it; indolent litigants cannot invoke Article 159 of the Constitution to excuse delay
- Any party may, under Rule 16(3) of the ELRC (Procedure) Rules, 2016, apply for dismissal of a suit in which no action has been taken within one year from the date of filing
Court orders
#- 1.The suit be dismissed for want of prosecution
- 2.Costs of the application and suit provided for (suit dismissed with costs)
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 16(1) and (3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Onwonga Ogeto v Security Guards Services Limited [2021] KEELRC 1281 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1281/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.