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ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1024 (KLR)

Kenya National Private Workers Union v “A” Team Security Limited [2022] KEELRC 1024 (KLR)

Employment and Labour Relations Court
21 January 2022
SRStella Rutto
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to immediately dismiss an employment claim dormant for three years, but gave the claimant a final 30-day deadline to move the case forward.

What this practically means

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Executive summary

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The Applicant/Respondent moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 9th August 2021, premised on Sections 1A, 1B and 3B of the Civil Procedure Act, Order 17 Rule 2(1) and (3) and Order 51 Rule 1 of the Civil Procedure Rules (2020), Section 12 of the Employment and Labour Relations Court Act and Rule 16 of the ELRC (Procedure) Rules, 2016, seeking dismissal of the claimant's suit for want of prosecution. It argued that the claimant had taken no steps for over three years and that the delay was inordinate, unreasonable and inexcusable. The Respondent/Claimant opposed through the affidavit of its National General Secretary, Mr. Isaac G.M Andabwa, blaming the former legal officer's departure without handover, difficulties in securing a hearing date for 2017 matters, the Covid-19 pandemic, and urging that mistake of counsel should not be visited on an innocent client. In written submissions, both sides cited authority, including Naftali Onyango v National Bank of Kenya and Mwangi S. Kimenyi v Attorney General. The court framed a single issue: whether the suit was liable to dismissal for want of prosecution. It found that the claimant had done nothing since filing, filed the suit and 'went to sleep', and had produced no evidence of seeking a hearing date or pretrial directions under Rule 15. Nonetheless, applying John Nahashon Mwangi v Kenya Finance Bank Limited, it held dismissal is a draconian act warranting judicious discretion. The court declined to dismiss the suit outright and directed the claimant to take concrete steps towards prosecution within 30 days, failing which the suit would stand dismissed with costs to the Applicant.

Key legal issues

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Whether the suit should be dismissed for want of prosecution

Holding

The application for dismissal was refused; the claimant was given 30 days to take concrete steps towards prosecution, failing which the suit would stand dismissed with costs to the Applicant.

Reasoning

The court found the claimant had taken no steps since filing and offered no evidentiary proof of efforts to obtain a hearing date, describing it as having filed the suit and gone to sleep. However, dismissal is draconian and drives a litigant from the seat of justice, so discretion was exercised judiciously: instead of outright dismissal, a final 30-day window was granted with dismissal to follow automatically upon non-compliance.

p. 2

Legal principles established

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  • Dismissal of a suit for want of prosecution is a draconian act and the court's discretion must be exercised judiciously.

Court orders

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  1. 1.Refusal to dismiss the suit for want of prosecution as prayed
  2. 2.Direction that the claimant takes concrete steps towards prosecution of the matter within 30 days, failure to which the suit shall stand dismissed for want of prosecution and the Applicant shall be entitled to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 3B
  • Civil Procedure Rules (2020)Order 17 Rule 2(1), (3); Order 51 Rule 1; Order 21 Rule 1
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 15 and 16(1)
  • Constitution of KenyaArticles 48 and 159(2)(d)

Cases cited (4)

  • Naftali Onyango vs National Bank of Kenya
    (2005) eKLR
  • Rajesh Rughani vs Fifty Investments ltd and another
    (2016) eKLR
  • Mwangi S. Kimenyi vs the Attorney General
    Civil Suit, Misc. No. 720 of 2009
  • John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3B of the Civil Procedure Act; Order 17 Rule 2(1) and (3) and Order 51 Rule 1 of the Civil Procedure Rules (2020); Section 12 of the Employment and Labour Relations Court Act; 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, "Kenya National Private Workers Union v “A” Team Security Limited [2022] KEELRC 1024 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1024/eng@2022-01-21

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