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ELRCOtherNot stated in the judgment· [2022] KEELRC 1016 (KLR)

Juma Ndegwa Nzowa v Dunhill Consulting Limited [2022] KEELRC 1016 (KLR)

Employment and Labour Relations Court
24 January 2022
MOMAUREEN ONYANGO
2,205 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court spared an employer's delayed case from dismissal but warned that failing to fix it for pre-trial within 30 days will kill the suit automatically.

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 11th September 2020 seeking dismissal of the Claimant's suit for want of prosecution, together with costs, brought under Order 17 Rule 2 and Order 51 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act. The Respondent contended that although the suit was filed in April 2018 and the Respondent served its Memorandum of Response in July 2018, the Claimant took no steps to prosecute the matter after it was certified ready for hearing on 22nd May 2019. The Claimant opposed the application, admitting delay but attributing it to a Registry directive prioritising older files when fixing hearing dates, and asserting his desire to prosecute the claim to conclusion. The court framed a single issue: whether the suit should be dismissed for want of prosecution. Applying the principles in Utalii Transport Company Limited v NIC Bank Limited, the court found the one-year threshold met and that the Claimant, having produced no evidence of attempts to obtain a hearing date, was guilty of sleeping on his rights. However, taking judicial notice of the case backlog and the prioritisation of older files, the court held that even diligent efforts might not have secured an earlier hearing date. Exercising leniency, the court declined to dismiss the suit outright but gave the Claimant a final 30-day opportunity to fix the suit for pre-trial, failing which it would automatically stand dismissed, and awarded the Respondent costs of the application assessed at Kshs.10,000/-, payable before fixing the suit for hearing. The judgment was delivered virtually at Nairobi on 24th January 2022 by Maureen Onyango J.

Key legal issues

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Whether the suit should be dismissed for want of prosecution

Holding

The court declined to dismiss the suit outright but gave the Claimant a final 30-day opportunity to fix the suit for pre-trial, failing which it would stand dismissed, with costs of the application awarded to the Respondent

Reasoning

The court applied the Utalii Transport principles, found the Claimant had taken no steps since 22nd May 2019 and had not evidenced his claim that the registry refused hearing dates. However, taking judicial notice of case backlog prioritisation, the court leniently exercised its discretion rather than dismissing the suit, condoning the delay conditionally while awarding costs.

p. 3

Legal principles established

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  • An applicant for dismissal for want of prosecution must show the one-year threshold, inordinate and inexcusable delay, prejudice, and that a fair trial cannot be achieved
  • A claimant who takes no steps to prosecute his suit is guilty of sleeping on his rights; litigation must come to an end

Court orders

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  1. 1.The Claimant is given a final opportunity to fix the suit for pre-trial within 30 days, failing which the suit will automatically stand dismissed
  2. 2.The Claimant shall pay the Respondent's costs for the application, assessed at Kshs.10,000/-, before fixing the suit for hearing

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2
  • Civil Procedure Rules, 2010Order 51 Rules 1, 3 and 4
  • Civil Procedure ActSections 1A, 1B, 3A
  • Employment and Labour Relations Court (Procedure) RulesRule 16
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Rules, 2010Order 21 Rule 1

Cases cited (7)

  • Josephat Muthui Muli v Ezeetec Ltd
    (2014) eKLR
  • Moses Mwangi Kimari v Shammi Kanjirapparambil Thomas
    (2014) eKLR
  • Omari Shee Kisahafu v Kwale International Sugar Company Limited
    (2020) eKLR
  • Brian Keli Muli v Performers Rights Society of Kenya (PRISK) & Another
    (2020) eKLR
  • Susan Wairimu v Gladways Academy & Another
    (2019) eKLR
  • Utalii Transport Company Limited & 3 others v NIC Bank Limited & Another
    (2014) eKLR
  • Kiiru M’mugambi & 39 others v Moses Kirima Meenye & Kirima Advocates & 3 Others
    (2020) eKLR
Jurisdiction invoked
Order 17 Rule 2 and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Rule 16 of the Employment and Labour Relations Court (Procedure) Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Juma Ndegwa Nzowa v Dunhill Consulting Limited [2022] KEELRC 1016 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1016/eng@2022-01-24

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