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ELRCDismissedNot stated in the judgment (ELC/ELRC cause; suit number not reproduced)· [2021] KEELRC 2111 (KLR)

Malachi Odongo v Pamoja Trust [2021] KEELRC 2111 (KLR)

Employment and Labour Relations Court
23 February 2021
NMNzioki wa Makau
2,009 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to reinstate a dismissed lawsuit, confirming that claimants must actively pursue their own cases or risk losing them permanently.

What this practically means

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Executive summary

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The Claimant filed a Notice of Motion dated 14th September 2020 seeking review and setting aside of orders made on 25th November 2019 dismissing his suit, and reinstatement of the suit for hearing on the merits. The application was supported by an affidavit of his advocate, Nelson W. Osiemo, who explained that a mention date of 10th September 2019 did not proceed as the judge did not sit, and that a Notice to Show Cause leading to dismissal was served on the wrong firm of advocates despite a Notice of Change of Advocates on record. The Respondent opposed through Grounds of Opposition and submissions, arguing inordinate and unexplained delay, that the Claimant had taken no step to fix the matter for hearing from 2015, and that a case belongs to the litigant who must diligently prosecute it. The court, Nzioki wa Makau J, framed one issue: whether the dismissal orders should be reviewed and the suit reinstated. The court acknowledged that Section 3A of the Civil Procedure Act and Orders 17 Rule 2(1) and 51 Rule 15 confer power to reinstate a suit and set aside ex parte orders, but applied Fran Investments Limited v G4S Security Services Limited, balancing discretion against the constitutional demand for expeditious disposal of cases under Article 159. Holding that the Claimant had done nothing since 10th September 2019, filed the application almost 10 months after dismissal, and had lost interest in a suit pending over five years, the court found a lack of diligence. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the dismissed suit should be reviewed and reinstated

Holding

The application for reinstatement was refused because the Claimant did not diligently prosecute the suit and the delay was unexplained

Reasoning

The court found the Claimant took no step to set the matter down after 10th September 2019 and waited almost 10 months after dismissal (25th November 2019) to file the reinstatement application on 14th September 2020. Relying on Fran Investments Limited v G4S Security Services Limited, the court held that although Order 17 Rule 2(1) gives the court discretion, that discretion must be weighed against the constitutional demand that cases be disposed of expeditiously, since justice delayed is justice denied and justice belongs to all parties.

p. 3

Legal principles established

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  • A litigant remains the driver of his case and cannot abdicate responsibility for prosecuting it to his advocates; unexplained inordinate delay disentitles a party to reinstatement of a dismissed suit

Court orders

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  1. 1.The Notice of Motion dated 14th September 2020 seeking review and reinstatement of the suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 5 Rule 8(1)
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 51 Rule 15
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Esther Wamaitha Njihia & 2 Others v Safaricom Limited
    [2014] eKLR
  • Shah v Mbogo
    [1968] E.A 93
  • Patel v E.A. Cargo Handling Services Ltd
  • Richard Ncharpi Leiyangu v IEBC & 2 Others
    [2014] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Samuel Kipsang Kitur & Another v Eunice Kitur & 2 Others
    [2005] eKLR
  • Fran Investments Limited v G4S Security Services Limited
    [2015] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 17 Rule 2(1) and Order 51 Rule 15 of the Civil Procedure Rules (inherent power to reinstate a dismissed suit and to set aside ex parte orders)

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, "Malachi Odongo v Pamoja Trust [2021] KEELRC 2111 (KLR)", Case Analysis (2021). Not stated in the judgment (ELC/ELRC cause; suit number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2111/eng@2021-02-23

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