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ELRCDismissedCause No 315 of 2015· [2022] KEELRC 57 (KLR)

Kadenge v Hotel (Cause 315 of 2015) [2022] KEELRC 57 (KLR)

Employment and Labour Relations Court of Kenya
28 April 2022
ANAGNES KITIKU NZEI
1,139 words in judgment
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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 was caused by Covid-19 and a missing court file, not neglect.

What this practically means

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Executive summary

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This was a ruling on the Respondent's Notice of Motion dated 25th October 2021 seeking dismissal of the Claimant's employment suit for want of prosecution under Order 17 Rule 2(1) & 3 and Order 51 Rule 1 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act. The Respondent, through its Financial Controller John Nomanyi, argued that after the Claimant closed his case on 22nd January 2020, the defence hearing fixed for 31st March 2020 failed due to Covid-19, and that no step had been taken to fix the suit for hearing since court operations resumed, causing the Respondent continued costs and anxiety. The Claimant, through a replying affidavit of Samuel Odhiambo Eleakim, opposed the application, stating that the hearing had partly proceeded before a judge since transferred, that the court file had gone missing despite efforts by his advocates to trace it, including a Service Requisition Form dated 31st May 2021 and a letter of 5th August 2021, and that the Claimant remained interested in the suit. The court, applying Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016 and the principles in Utalii Transport Company v Nic Bank as restated in Dominic Kiragu Warui v K-rep Bank, took judicial notice of the Covid-19 pandemic's disruption of court operations and found the delay, though exceeding one year, was neither intentional nor unexplained given the Claimant's efforts. The application was dismissed with no order as to costs, and the suit was fixed for mention on 10th May 2022 for a defence hearing date.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

The application was dismissed because the delay, though exceeding one year, was not intentional and was sufficiently explained by the Covid-19 pandemic and the claimant's efforts to trace the court file.

Reasoning

Rule 16 of the ELRC (Procedure) Rules 2016 empowers the court to dismiss suits where no action is taken within one year. However, the claimant had closed his case by 22nd January 2020, and the defence hearing fixed for 31st March 2020 could not proceed due to Covid-19. The claimant made belated but notable efforts to trace the file, including a Service Requisition Form and correspondence through the Deputy Registrar. Dismissal would not serve the interests of justice.

p. 3

Legal principles established

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  • In exercising jurisdiction to dismiss suits for want of prosecution, the court considers whether delay is inordinate, intentional, inexcusable, an abuse of process, whether it prejudices fair trial, and what is in the interest of justice.

Court orders

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  1. 1.The Notice of Motion dated 25th October 2021 is hereby dismissed with no order as to costs.
  2. 2.The case shall be mentioned in Court on 10th May 2022 for purposes of fixing a date for defence hearing.

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1) & 3; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 16

Cases cited (2)

  • Dominic Kiragu Warui v K-rep Bank Limited
    [2017] eKLR
  • Utalii Transport Company Limited & 3 others v Nic Bank Ltd & another
    [2014] eKLR
Jurisdiction invoked
Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Kadenge v Hotel (Cause 315 of 2015) [2022] KEELRC 57 (KLR)", Case Analysis (2022). Cause No 315 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/57/eng@2022-04-28

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