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ELRCDismissedNot stated in the excerpt· [2023] KEELRC 948 (KLR)

Kinyili v Azure Hotel Limited (Cause 2158 of 2017) [2023] KEELRC 948 (KLR)

Employment and Labour Relations Court
24 April 2023
JGJacob Gakeri
2,837 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 claim dismissed for being left idle for four years, showing delay kills cases.

What this practically means

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Executive summary

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The Claimant moved the court by Notice of Motion dated November 8, 2022 seeking to set aside and vary the dismissal of his suit on October 25, 2021 for want of prosecution and to have the claim reinstated for hearing on merit. The suit, filed October 31, 2017, had progressed to a consent judgment on some heads (paid by the Respondent) with remaining claims set down for trial, but no steps were taken after directions issued on November 7, 2018 until the court issued a notice to show cause. The court, under Rule 16(1) of the ELRC (Procedure) Rules, 2016 and Order 12 Rule 7 of the Civil Procedure Rules, applied the settled principles in Utalii Transport v NIC Bank and related authorities. It found the Claimant took no step for over 4 years; that COVID-19 could not excuse inaction beyond 2020; that the allegation that the notice to show cause was served on a wrong email was unsubstantiated as previous counsel did not swear an affidavit; and that the application itself was filed more than a year after dismissal without explanation. The Respondent had honoured the consent judgment promptly and was prejudiced by the pendency of the suit. Applying the maxim that equity aids the vigilant and not the indolent, the court held the delay inordinate, unexplained and inexcusable, dismissed the application with no orders as to costs, and declined to reinstate the claim. Judgment delivered virtually at Nairobi on April 24, 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the application to reinstate the suit dismissed for want of prosecution was merited

Holding

The application failed because the applicant was guilty of inordinate, unexplained and inexcusable delay of over 4 years in prosecuting the suit and over 1 year in filing the reinstatement application

Reasoning

The court applied the Utalii Transport principles: it found inordinate delay from November 7, 2018 to November 2022 with no letter, email or evidence of steps taken; COVID-19 could not excuse 2021 inaction; the claim that the notice to show cause was not served was unsubstantiated; the respondent honoured a consent judgment and was prejudiced by the pendency of the suit.

p. 6

Legal principles established

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  • Dismissal for want of prosecution is a draconian remedy to be exercised sparingly; equity aids the vigilant, not the indolent
  • The court has unlimited discretion to set aside an order dismissing a suit for want of prosecution in the interest of justice, but the application must be made timeously and delay must be explained

Court orders

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  1. 1.Dismissal of the Notice of Motion dated November 8, 2022
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSections 1A & B, 2, 3A
  • Constitution of Kenya, 2010Article 159(2)(h)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 16(1)

Cases cited (14)

  • Utalii Transport Co Ltd & 3 others v NIC Bank & another
    (2014) eKLR
  • Joseph Kinyua v GO Ombachi
    [2019] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • John Kabira Kioni v George Namasaka Sichangi t/a Sichangi & Co Advocates
    [2019] eKLR
  • Franklin JB Chabari v Tharaka Nithi County Government & another
    [2019] eKLR
  • Bilha Ngonyo Isaac v Kembu Farm & another
    [2018] eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Edney Adaka Ismail v Equity Bank Ltd
    [2014] eKLR
  • Shah v Mbogo
    [1968] EA 93
  • Pithon Maina v Mugiria
    [1982-1988] 1 KAR 177
  • Mwangi S Kimenyi v Attorney General & another
  • John Nahashon Mwangi v Kenya Finance Bank Ltd (In liquidation)
    [2015] eKLR
  • Agip (Kenya) Ltd v Highlands Tyres Ltd
    [2001] 1 KLR
  • Sagoo v Bhari
    [1990] KLR 459
Jurisdiction invoked
Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A & B, 2, 3A of the Civil Procedure Act; Article 159(2)(h) of the Constitution of Kenya, 2010

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, "Kinyili v Azure Hotel Limited (Cause 2158 of 2017) [2023] KEELRC 948 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/948/eng@2023-04-24

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