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ELRCDismissedNot stated in the judgment· [2023] KEELRC 376 (KLR)

Gitonga v Matimbo (Appeal E076 of 2021) [2023] KEELRC 376 (KLR)

Employment and Labour Relations Court
14 February 2023
JGJacob Gakeri
2,080 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 kill an inactive appeal but gave the appellant 30 days to file or lose it automatically.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 28th September 2022 in which the Respondent ( applicant before the ELRC on appeal from a subordinate court whose judgment was delivered on 6th July 2021) sought dismissal of the Appellant's appeal for want of prosecution, release of funds deposited in a joint interest-bearing account, and an order compelling Sidian Bank to honour a bank guarantee. The application was brought under Order 17 Rule 2 of the Civil Procedure Rules, 2010. The Respondent argued that although the Memorandum of Appeal was filed on 27th July 2021, no step had been taken to prosecute the appeal, the record of appeal had not been filed, and the Appellant was content to rest on stay of execution orders granted on 21st February 2022 to her detriment as a house servant. The Appellant countered that the power to dismiss was discretionary, that extraction of orders on 7th April 2022 was a step in the proceedings, and that the one-year inactivity threshold had not been met. The court, per Dr. Jacob Gakeri J, applied the settled principles that dismissal for want of prosecution is discretionary and requires inordinate, inexcusable delay and prejudice. It found the delay long but not inordinate, noting the stay application of 15th December 2021 interrupted the one-year inactivity period. Nonetheless, concerned at the Appellant's inaction since July 2021, the court disallowed the application but directed the Appellant to file the record of appeal within 30 days failing which the appeal would stand deemed dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, 2010

Holding

The application was disallowed. Although the appellant had taken no tangible step since July 2021, the delay was not inordinate because the stay application of 15th December 2021 meant the one-year threshold of inactivity was not met, and courts should be slow to dismiss suits for want of prosecution.

Reasoning

The court reviewed the settled principles from Argan Wekesa Okumu, Nilesh Premchand Mulji Shah and Naftali Opondo Onyango: the applicant must show inordinate, inexcusable delay and prejudice, and the discretion must be exercised judiciously with a preference for sustaining suits. The appellant filed a stay application in December 2021 which was granted in February 2022, interrupting the one-year period of inaction required under Order 17 Rule 2. However, because no step had been taken since, the court directed filing of the record of appeal within 30 days failing which the appeal stands deemed dismissed.

p. 4

Legal principles established

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  • Dismissal of a suit for want of prosecution is a matter of judicial discretion to be exercised judiciously, considering whether the delay is inordinate, inexcusable and prejudicial
  • A court should strive to sustain a suit where possible rather than prematurely terminating it

Court orders

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  1. 1.The Notice of Motion dated 28th September, 2022 is disallowed
  2. 2.The Appellant/Respondent shall file the record of appeal within 30 days from the date hereof failing which the appeal shall be deemed dismissed
  3. 3.Parties to bear own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2(1)-(4)
  • Civil Procedure Rules, 2010Order 45 Rule 3(5)(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Regulation 16
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure Rules, 2010Order 21 Rule 1

Cases cited (6)

  • Peter Kipkurui Chemoiwo v Richard Chepsergon
    [2021] eKLR
  • Ecobank Ghana Ltd v Triton Petroleum Co. Ltd & 5 others
    [2018] eKLR
  • Argan Wekesa Okumu v Dima College Ltd and 2 others
    [2015] eKLR
  • Ivita v Kyumbu
    [1984] KLR 441
  • Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D Popat and others and another
    [2016] eKLR
  • Naftali Opondo Onyango v National Bank of Kenya Ltd
    [2005] eKLR
On appeal from
Not stated (lower court)
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court; application brought under Order 17 Rule 2 of the Civil Procedure Rules, 2010 and all other enabling provisions

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, "Gitonga v Matimbo (Appeal E076 of 2021) [2023] KEELRC 376 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/376/eng@2023-02-14

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