Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No 2108 of 2017· [2022] KEELRC 1657 (KLR)

Ngui v Termi-Lever Services Limited (Cause 2108 of 2017) [2022] KEELRC 1657 (KLR)

Employment and Labour Relations Court
17 May 2022
JGJacob Gakeri
1,244 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

#

A Kenyan court saved an employee's delayed lawsuit because their lawyer kept written proof of chasing hearing dates.

What this practically means

#

Executive summary

#
This was a ruling on an oral application made on 7th December 2021 seeking vacation of a notice to show cause issued by the Employment and Labour Relations Court at Nairobi, directing the Claimant to show cause why the 2017 suit should not be dismissed for want of prosecution. The matter had a chequered procedural history: the notice to show cause came up on 5th November 2021 and was deferred several times to allow the Claimant's counsel to file and serve a replying affidavit, which was eventually served on 10th March 2022. In an unopposed replying affidavit sworn by Gorrety A. Otieno, Advocate, the Claimant demonstrated that from February 2021 his counsel had persistently sought pre-trial and hearing dates: emails dated 12th May, 17th May, 7th July and 7th September 2021 were sent to the Registry, which repeatedly delayed, apologised for inordinate delay, and explained it was processing 2017 matters chronologically. Barely a month after the Registry's final response of 7th September 2021, the notice to show cause issued. Framing the singular issue as whether the Claimant had demonstrated by action and deed a desire to prosecute the suit to conclusion, the court found the annexures proved counsel's innumerable attempts beyond peradventure, with the delay occasioned by the Registry and outside the Claimant's control. The court vacated the notice to show cause and slated the suit for pre-trial before the Deputy Registrar on 31st May 2022. No costs order was made. The ruling was delivered virtually pursuant to the Chief Justice's COVID-19 directions, guided by Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

#
01

Whether the Claimant demonstrated sufficient desire and commitment to prosecute the suit, justifying vacation of the notice to show cause for dismissal for want of prosecution

Holding

The notice to show cause was vacated because the Claimant, through his counsel, made innumerable documented attempts to have the matter fixed for pre-trial, and the delay was largely occasioned by the Registry, which the Claimant could not control.

Reasoning

The replying affidavit of Gorrety A. Otieno, supported by annexed emails and correspondence between 12th May 2021 and 7th September 2021, showed counsel repeatedly sought pre-trial and hearing dates. The Registry repeatedly deferred, apologised for inordinate delay, and indicated it was processing 2017 matters chronologically. The notice to show cause followed barely a month after the Registry's last response. The affidavit was unopposed, and the court found the annexures proved the Claimant's diligence beyond peradventure.

p. 3

Legal principles established

#
  • A party demonstrates desire and commitment to prosecute a suit by concrete action and deed, such as persistent attempts to obtain hearing dates, even where delay is occasioned by the court registry

Court orders

#
  1. 1.The notice to show cause why the suit should not be dismissed for want of prosecution is vacated
  2. 2.The suit is slated for pre-trial before the Deputy Registrar on 31st May 2022 for further directions on disposal

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
Jurisdiction invoked
Original employment and labour relations jurisdiction; virtual delivery of ruling under Article 159(2)(d) and Article 48 of the Constitution, Section 1B of the Civil Procedure Act and the Chief Justice's directions of 15th March 2020 and 21st April 2020

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ngui v Termi-Lever Services Limited (Cause 2108 of 2017) [2022] KEELRC 1657 (KLR)", Case Analysis (2022). Cause No 2108 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1657/eng@2022-05-17

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