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ELRCDismissedNot stated in the judgment (application dated 19th February 2021)· [2022] KEELRC 457 (KLR)

Ngile Wambua v Mr & Mrs Latif [2022] KEELRC 457 (KLR)

Employment and Labour Relations Court
18 March 2022
SRStella Rutto
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to dismiss a dormant employment case but gave the claimant 30 days to move it or lose it.

What this practically means

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Executive summary

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The Respondent in an employment claim moved the court by an application dated 19th February 2021 under Rule 16(1) and (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016, seeking dismissal of the suit for want of prosecution and costs. It argued that the Claimant took no steps for over sixteen months after close of pleadings, that the Respondent's advocate had to secure e-filing registration of a dormant file, and that a witness had since died. The Claimant opposed through a Replying Affidavit of Ms. Serah Njenga, blaming Covid-19 court scale-downs, transfer of judges and the registry's failure to open the diary, and relied on authorities including Ivita vs Kyumbu and Utalii Transport Company Limited. The court framed a single issue: whether the suit was liable to dismissal for want of prosecution. It found the Claimant had gone to sleep after the mention of 29th May 2019 and produced no evidence of requesting a hearing date, and that Covid-19 could not explain delay predating the pandemic. However, the approximately sixteen-month delay was not so inordinate given the court was still handling 2017 matters, and dismissal is a draconian act that should be exercised sparingly, following John Nahashon Mwangi vs Kenya Finance Bank Limited. The application was not allowed; the Claimant was directed to take concrete steps to prosecute the suit within 30 days, failing which the suit shall stand dismissed with costs of the application to the Applicant. Costs were otherwise in the cause. Judgment delivered by Stella Rutto, J, at Nairobi on 18th March 2022.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Rule 16(1) of the ELRC Procedure Rules, 2016

Holding

Application dismissed; the Claimant granted 30 days to take concrete steps towards prosecution, failing which the suit shall stand dismissed

Reasoning

Rule 16(1) permits dismissal of suits inactive for over a year but not automatically; each case turns on its own merits. Although the Claimant went to sleep after 29th May 2019 and offered no evidence of seeking a hearing date, and Covid-19 could not explain delay predating the pandemic, the roughly 16-month delay was not so inordinate given the court's backlog of 2017 matters. Dismissal being a draconian act, discretion was exercised judiciously in favour of allowing the Claimant a final window.

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02

Whether the delay was excusable

Holding

Partly excusable; the Claimant's excuse of registry delays and judicial transfers lacked evidentiary support, and Covid-19 could not explain the whole delay

Reasoning

The Claimant blamed transfer of judges, an unopened diary and the Covid-19 pandemic, but produced no evidence of having requested a date. The court took judicial notice that courts were operating normally as at 29th May 2019, before Covid-19 was reported in Kenya. The Claimant effectively went to sleep and was only jolted to action by the application and the court's own-motion mention notice.

p. 2

Legal principles established

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  • A suit idle for more than one year is liable to dismissal for want of prosecution, but dismissal is discretionary and each case must be decided on its own merits
  • Courts should sparingly dismiss suits for want of prosecution as dismissal is a draconian act

Court orders

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  1. 1.Application dated 19th February 2021 not allowed as prayed
  2. 2.Claimant directed to take concrete steps towards prosecution of the matter within the next 30 days, failing which the suit shall stand dismissed for want of prosecution and the Applicant shall be entitled to costs of the Application
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 16(1) and (3); Rule 15
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (5)

  • Argan Wekesa Okumu vs Dima College Limited & 2 others
    (2015) eKLR
  • Pinpoint Solutions Limited & another vs Lucy Waithegeno Wanderi (as the legal administrator of the estate of James Nynaga Muchangi
    (2020) eKLR
  • Ivita vs Kyumbu
    (1975) eKLR
  • Utalii Transport Company Limited vs NIC Bank Limited & another
    (2014) eKLR
  • John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 16(1) and (3)

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, "Ngile Wambua v Mr & Mrs Latif [2022] KEELRC 457 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated 19th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/457/eng@2022-03-18

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