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ELRCPartially AllowedNot stated in the extract· [2023] KEELRC 1861 (KLR)

Siaji v Craft Silicon Limited (Cause 157 of 2019) [2023] KEELRC 1861 (KLR)

Employment and Labour Relations Court
3 July 2023
4,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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An employment case in Kenya was dismissed after the claimant sat on it for over two years, showing courts will punish unexplained delay.

What this practically means

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Executive summary

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The respondent/applicant moved the Employment and Labour Relations Court at Nairobi seeking dismissal of the claimant's suit for want of prosecution under rule 16 of the ELRC (Procedure) Rules, 2016. The respondent argued a cumulative delay of two years and two months, including over a year after the Court's ruling of November 24, 2021 directed the claimant to prosecute the matter within two weeks following an earlier dismissal application, was inordinate, inexcusable and prejudicial. It relied on authority that an applicant need only show one year of inactivity without good cause, shifting the burden to the claimant, and that article 159(2)(d) is no panacea for procedural default. The claimant opposed through a replying affidavit attributing the delay to staff transition and administrative inefficiencies at his advocate's office, contending an advocate's mistake should not be visited on a client, that the delay was not inordinate, that no particularised prejudice was shown, and invoking articles 50 and 159(2)(d) and the principle that suits should be sustained rather than terminated. The court found the claimant demonstrably indolent, produced no evidence of any effort to prosecute after November 24, 2021, and noted the rarity of two successive want-of-prosecution applications. Associating itself with Nzoia Sugar Company Limited v West Kenya Sugar Limited, it held the suit fit for dismissal. Nzioki Wa Makau, J dismissed the suit with costs to the respondent on July 3, 2023.

Key legal issues

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01

Test for dismissal for want of prosecution under rule 16

Holding

The applicant need only show no step has been taken for one year without good cause; the burden then shifts to the claimant to show sufficient cause

Reasoning

The court adopted the analysis in Kenya Plantation and Agricultural Workers Union v Unliver Tea Kenya Limited, applying rule 16 of the ELRC (Procedure) Rules, 2016. A cumulative delay of over two years, including over a year following a prior court directive to expedite, satisfied the rule. The claimant's explanation of administrative inefficiencies at counsel's office was unsupported by evidence of any follow-up effort.

p. 2
02

Whether the claimant's explanation excused the delay

Holding

No - counsel's office inefficiencies did not excuse the claimant, who bore the duty to prosecute

Reasoning

The claimant alleged staff transition at his advocate's firm caused the lapse, but produced no evidence of any efforts to follow up after November 24, 2021. The court held a litigant cannot blame counsel and must remain vigilant, associating itself with authority that a case belongs to the litigant, not the advocate.

p. 7
03

Whether article 159(2)(d) and the right to fair trial warranted sustaining the suit

Holding

No - constitutional dictates against technicality do not excuse indolence or override procedural rules

Reasoning

The claimant invoked article 50 and article 159(2)(d) to resist dismissal. The court endorsed the Supreme Court's position in Zacharia Okoth Obado v Edward Akong'o Oyugi that article 159(2)(d) is not a panacea for procedural shortfalls, and that parties must comply with rules for orderliness in proceedings.

p. 3

Legal principles established

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  • A litigant who has been pardoned one lapse and again fails to prosecute for an inordinate period without explanation risks dismissal for want of prosecution; justice aids the vigilant
  • Suits should be prosecuted, not left parked in the registry, and respondents are entitled to expeditious disposal

Court orders

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  1. 1.The claimant's suit dismissed for want of prosecution
  2. 2.Costs of the application and suit awarded to the respondent
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, rule 16

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, "Siaji v Craft Silicon Limited (Cause 157 of 2019) [2023] KEELRC 1861 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1861/eng@2023-07-03

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