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ELRCDismissedNot stated in judgment· [2021] KEELRC 2092 (KLR)

Molly Ayiemba v SNV/Netherlands Development Organization [2021] KEELRC 2092 (KLR)

Employment and Labour Relations Court
24 February 2021
MNMathews N. Nduma
712 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 Court refused to dismiss a stalled employment case because the delay, though long, caused no proven unfairness or prejudice.

What this practically means

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Executive summary

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The respondent (applicant) filed a Notice of Motion dated 2 July 2020 seeking dismissal of the claimant's suit, filed on 29 September 2016, for want of prosecution, contending that over three years and ten months had elapsed without the claimant taking any step to prosecute the matter, and that the inordinate delay prejudiced the respondent. The Court observed that the respondent filed its statement of defence on 4 November 2016, and that the claimant only filed a reply on 25 November 2020 - without leave and after the application was filed. The claimant, through her advocate Mr. Martin Njiru, attributed the failure to prosecute to circumstances beyond her control. The Court applied the test in Halsbury's Laws of England (4th Edition, Vol. 37, paragraph 48): dismissal for want of prosecution requires intentional and contumelious default, or prolonged and inordinate delay coupled with a substantive risk of an unfair trial or serious prejudice to the defendant. The Court found the delay inordinate, but held that the applicant failed on the second limb - it did not demonstrate that a fair trial would be impossible or that it would suffer serious prejudice if the matter were expedited. The Court, 'though hesitantly,' dismissed the application, cautioned the claimant to prosecute the suit with haste, admonished the claimant's advocates for irregularly filing the reply but admitted it as a mistake of counsel. The application was dismissed with no order as to costs, and parties were directed to take pre-trial directions. The ruling was delivered online pursuant to COVID-19 measures.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

Application dismissed; delay was inordinate but no serious prejudice or risk of unfair trial was demonstrated

Reasoning

The Court applied the two-limb test from Halsbury's Laws of England: inordinate delay plus risk of unfair trial or serious prejudice. The delay of over three years and ten months was found inordinate, but the respondent did not demonstrate that a fair trial was impossible or that it would suffer serious prejudice if the matter were expedited and set down for hearing. Balancing the factors, dismissal was not warranted.

p. 1
02

Status of the reply to the statement of defence filed without leave after the application was filed

Holding

The reply was admitted despite being filed irregularly, as the mistake was counsel's, not the claimant's

Reasoning

The claimant filed a reply to the statement of defence on 25/11/2020, more than four years after the defence, and after the dismissal application was filed, without leave of Court. The Court admonished the claimant's advocates for 'sneaking in' the reply but admitted it on the basis that the error was attributable to counsel rather than the claimant herself.

p. 1

Legal principles established

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  • Dismissal for want of prosecution requires both inordinate delay and demonstration of a substantive risk of unfair trial or serious prejudice

Court orders

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  1. 1.The Notice of Motion dated 2/7/2020 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.No order as to costs
  3. 3.Parties to take pre-trial directions on the date of the ruling
  4. 4.The reply to the statement of defence filed without leave is admitted, with a caution to the claimant's advocates

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Not expressly stated; application under the Court's procedural powers to dismiss for want of prosecution

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, "Molly Ayiemba v SNV/Netherlands Development Organization [2021] KEELRC 2092 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2092/eng@2021-02-24

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