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ELRCOtherCause No. 106 of 2018· [2022] KEELRC 453 (KLR)

Abdi Mohammed Abdi & another v Fayaz Bakers Limited & another [2022] KEELRC 453 (KLR)

Employment and Labour Relations Court
10 March 2022
ANAGNES KITIKU NZEI
1,010 words in judgment
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The bottom line

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The Employment Court in Mombasa refused to throw out this employment case for delays, partly blaming Covid-19 court closures, but gave the workers six months to move it forward.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Mombasa on the Respondents' Notice of Motion dated 16th July 2021 seeking dismissal of the Claimants' suit for want of prosecution under Rule 16 of the ELRC (Procedure) Rules 2016, alongside Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Orders 17 and 51 of the Civil Procedure Rules. The 1st Respondent, through its Human Resource Manager Swaleh Awadh Hemed, contended that the Claimants' inaction from 4th May 2020 was unjustified and was putting it to needless expense, and that courts had resumed virtual operations after May 2020. The 2nd Claimant opposed the application in a Replying Affidavit, deponing that the Claimants had fixed the matter for hearing on 23/5/2019, 28/11/2019 and 4/5/2020 and served hearing notices, that delays were caused by amendment of the claim, the closure of courts due to the Covid-19 pandemic from March 2020, and ongoing settlement negotiations, and that the Claimants were ready to proceed. Nzei J took judicial notice of the Covid-19 pandemic's slowdown of court operations during 2020. Although no step had been taken between 4th May 2020 and 22nd July 2021, the Court found the Claimants had previously taken reasonable steps towards prosecution. The Court therefore declined to dismiss the suit, dismissed the application with no orders as to costs, and gave conditional orders requiring the Claimants to prosecute the suit within six months, failing which it would stand dismissed, with a mention on 30/3/2022 for directions and fixing of a 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; the Court found prior diligent steps by the Claimants and judicially noticed the Covid-19 pandemic's slowdown of court operations

Reasoning

The record showed that although no step was taken between 4th May 2020 and 22nd July 2021, the Claimants had previously fixed the matter for hearing and served hearing notices on 23/5/2019, 28/11/2019 and 4/5/2020. The Court took judicial notice that the global Covid-19 pandemic slowed court operations in Kenya during 2020. Balancing these factors, dismissal was not warranted, but a conditional timeline was imposed.

p. 2

Legal principles established

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  • Under Rule 16 of the ELRC (Procedure) Rules 2016, a party may apply for dismissal of a suit where no action has been taken within one year, but the Court will decline dismissal where reasonable steps towards prosecution were previously taken and reasonable cause (such as the Covid-19 pandemic) is shown
  • A Court may decline dismissal for want of prosecution subject to a conditional order requiring the claimant to prosecute the suit within a set period

Court orders

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  1. 1.The Notice of Motion dated 16th July 2021 is dismissed with no orders as to costs
  2. 2.The Claimants shall prosecute the suit within six (6) months from the date of the Ruling, failing which the suit shall stand dismissed
  3. 3.The suit shall be mentioned in Court for appropriate directions and fixing of a hearing date on 30/3/2022

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 17 Rule 2(1) & (3); Order 51 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 16(1)
Jurisdiction invoked
Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Orders 17 Rule 2(1) & (3) and 51 Rule 1 of the Civil Procedure Rules; Rule 16(1) 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, "Abdi Mohammed Abdi & another v Fayaz Bakers Limited & another [2022] KEELRC 453 (KLR)", Case Analysis (2022). Cause No. 106 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/453/eng@2022-03-10

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