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ELRCDismissedPetition (number not stated in judgment)· [2023] KEELRC 116 (KLR)

Gisiri & 3 others v Kisii University (Petition 25 of 2020) [2023] KEELRC 116 (KLR)

Employment and Labour Relations Court
26 January 2023
CBChristine N. Baari
1,106 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 refused to revive a dismissed case because the claimants waited eight months and could not fully explain the delay.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu (Baari J) on the petitioners' application dated September 27, 2022, seeking reinstatement of their petition which had been dismissed for want of prosecution by an order of January 24, 2022, after none of the parties attended a notice-to-show-cause hearing on January 25, 2022. The petitioners, former employees of the respondent, explained that their lead petitioner, who handled communications on the suit, fell ill between August 2021 and May 2022 and ultimately succumbed, causing miscommunication; they argued the application was made within reasonable time and that the respondent would suffer no prejudice. The respondent opposed via a replying affidavit of Seth Ayunga Onguti, contending that no explanation was offered for the period January to August 2021, that this was not a representative suit so each petitioner had a personal interest, that the underlying contracts were time-bound and had lapsed, and citing Charo Shuhuli Randu vs Karisa Nzai & another. The court applied Rule 22 of the ELRC Procedure Rules and the reinstatement test from John Nahashon Mwangi vs Kenya Finance Bank Ltd, and noted the eight-month delay in filing the application. It held that the reasons were insufficient given that three petitioners still had capacity to prosecute but did not. The application was dismissed with no orders as to costs. Judgment delivered by video-link and in court at Kisumu on January 26, 2023.

Key legal issues

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Whether the dismissal of the petition for want of prosecution should be set aside and the petition reinstated

Holding

The application fails; the delay of eight months in moving for reinstatement, and the failure of the remaining petitioners to prosecute despite capacity to do so, made the reasons inadequate.

Reasoning

The court applied Rule 22 of the ELRC Procedure Rules permitting dismissal where a party fails to attend without reasons, and the established reinstatement test of reasonable grounds and balance of prejudice. The petitioners explained only the period August 2021 to May 2022 via the lead petitioner's illness and death; no explanation was given for January to August 2021 or for the inaction of the other petitioners. This being a non-representative suit, each petitioner had a personal interest and duty to prosecute.

p. 3

Legal principles established

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  • The tests on an application to reinstate a suit are whether there are reasonable grounds for reinstatement and the balance of prejudice between the parties
  • Delay in prosecution of suits is an affront to the administration of justice
  • In a non-representative suit, each petitioner bears a personal duty to prosecute the suit

Court orders

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  1. 1.The petitioners' application dated September 27, 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 2(6)
  • Employment and Labour Relations Court (Procedure) RulesRule 22
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Charo Shuhuli Randu vs Karisa Nzai & another
    (2018) eKLR
  • Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd -v- Augustine Kubede
    (1982-1988) KAR
  • John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
  • London Distillers (K) Limited v Philip Kipchirchir & 2 others
    (2007) eKLR
  • Fran Investment Ltd v G4S Security Services Ltd
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 22; Order 17 rule 2(6) Civil Procedure Rules

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, "Gisiri & 3 others v Kisii University (Petition 25 of 2020) [2023] KEELRC 116 (KLR)", Case Analysis (2023). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/116/eng@2023-01-26

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