George Njagi Machui v Healthlink Matcare Limited t/a The Nairobi Women’s Hospital [2022] KEELRC 686 (KLR)

Rule 11para 3 provides that summons are valid for 6 months in the first instance, extendable if the Court is satisfied it is just. The Rules contain no provision that a claim abates on expiry of summons. Both parties agreed the summons issued and were served outside the validity period without extension. The Claimant, however, demonstrated the delay arose from the Court Registry's failure to sign and date the summons and Covid-19 scaling down of operations, and that he pursued the summons assiduously. Dismissal would offend fair administration of justice.

The Court took more than a year to sign and date the Notice of Summons, possibly because responsible officers were limited by the prevailing public health situation. The Claimant exhibited his communications with the Court, including an email of 15th February 2021 enquiring about the unsigned summons. He was told the original summons could not be traced and was advised to present fresh documents. The Court acknowledged that Covid-19 severely limited operations across the public and private sectors, excusing the non-prosecution.

The Respondent grounded the application on Rules 11para 3 and 16para 1 of the E&LRC Procedure Rules, 2016, but also invoked Order 51 of the Civil Procedure Rules and relied on High Court decisions on Order 11. The Court held that Order 11 of the Civil Procedure Rules does not apply to proceedings of the Employment and Labour Relations Court, which is governed by its own Procedure Rules, 2016. The High Court decisions relied upon by the parties were therefore inapposite.