Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 1302 of 2018· [2022] KEELRC 1431 (KLR)

Kiragu v Nairobi Bottlers Limited (Cause 1302 of 2018) [2022] KEELRC 1431 (KLR)

Employment and Labour Relations Court
23 June 2022
SRStella Rutto
1,330 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Employment Court refused to dismiss an employment claim delayed for years, ruling that one year of inactivity does not automatically end a case in Kenya.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi (Stella Rutto J) on a notice of motion dated May 10, 2022 by the respondent/applicant seeking dismissal of the claimant's 2018 suit for want of prosecution, under sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 rule 2 of the Civil Procedure Rules. The applicant argued the claimant had abandoned the suit for over three years, causing prejudice. The claimant opposed, explaining that her advocates had followed up on hearing dates, were advised to await official notices for 2018 matters, and had requested a mention on February 17, 2022. The court framed a single issue: whether the suit was liable to dismissal for want of prosecution. Applying Rule 16(1) of the ELRC (Procedure) Rules, 2016, a replica of Order 17 rule 2, the court held that while suits idle for over a year are liable to dismissal, one year of idleness does not warrant automatic dismissal; each case turns on its own merits. The record showed the claimant's advocates made attempts to progress the matter. Noting the court was then handling 2017 matters, the delay was not so inordinate and inexcusable as to warrant dismissal. Relying on John Nahashon Mwangi v Kenya Finance Bank Limited, the court reiterated that dismissal for want of prosecution is a draconian act to be exercised sparingly. The application was declined; the matter was directed to be listed for hearing on a priority basis, with costs in the cause.

Key legal issues

#
01

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

Holding

The application was declined; the delay was not inordinate or inexcusable given the court's diary was still handling 2017 matters, and dismissal being draconian, the matter was directed to be heard on priority basis.

Reasoning

Rule 16(1) replicates Order 17 rule 2 CPR and permits dismissal of suits inactive for over one year, but the power is discretionary, not automatic. The court record showed the claimant's advocates made attempts to progress the matter (May 2019 letter and February 2022 mention request). Given the court registry backlog and the draconian nature of dismissal, justice favours hearing the suit rather than terminating it.

p. 3

Legal principles established

#
  • An idleness of one year does not translate to automatic dismissal of a suit; each case must be considered on its own merit.
  • Dismissal for want of prosecution is a draconian act and the discretion ought to be exercised judiciously and sparingly.

Court orders

#
  1. 1.The application dated May 10, 2022 is not allowed
  2. 2.The matter to be listed for hearing on a priority basis, noting it is a 2018 matter
  3. 3.Costs shall be in the cause

Authorities

#

Legislation

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

Cases cited (5)

  • Argan Wekesa v Dima College & 4 others
    Civil Case 1932 of 2004
  • Allan v Sir Alfred Mc Alphine and Sons Ltd
    [1968] 1 All ER 543
  • Utalii Transport Company Limited & 3 others v NIC Bank Limited & another
    [2014] eKLR
  • Naftali Opondo Onyango v National Bank of Kenya Ltd.
    [2005] eKLR
  • John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Order 17 rule 2 and Order 51 rule 1 of the Civil Procedure Rules; Rule 16(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kiragu v Nairobi Bottlers Limited (Cause 1302 of 2018) [2022] KEELRC 1431 (KLR)", Case Analysis (2022). Cause No 1302 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1431/eng@2022-06-23

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