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ELRCPartially AllowedNotice of motion dated March 31, 2022 (claim filed March 20, 2018)· [2023] KEELRC 1901 (KLR)

Osike v University of Nairobi (Cause 340 of 2018) [2023] KEELRC 1901 (KLR)

Employment and Labour Relations Court
27 July 2023
LNLinnet Ndolo
681 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 claim was thrown out after four years of inactivity, because the claimant blamed COVID-19 for a delay that started long before the pandemic.

What this practically means

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Executive summary

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By a notice of motion dated March 31, 2022, the respondent sought dismissal of the claimant's claim for want of prosecution under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules. The respondent deponed that the claim was filed in March 2018, last in court on June 5, 2018, and that no material step had been taken for over four years, prejudicing the respondent. The claimant, appearing in person, opposed the motion, explaining that he wrote to the court for directions in July 2018 without response, was served with the memorandum of response only in November 2018, did not know the next steps, and thereafter faced challenges due to the COVID-19 pandemic. He asserted continued interest in prosecuting the claim and sought to be heard on merit. The court held that the pandemic could not explain the delay: no action was taken between June 5, 2018 and March 2020 when the first COVID-19 case was reported, nor after containment measures were lifted. Relying on the Court of Appeal's decision in Njoroge v Kimani [2022] KECA 1188, that discretionary power is judicial and must be exercised within the rules of reason and justice, and that a satisfactory reason must be offered for delay, the court found the inordinate delay unexplained and concluded the claimant was a disinterested litigant. The application was allowed and the claim dismissed for want of prosecution, with each party bearing their own costs. Judgment was delivered virtually at Nairobi on July 27, 2023 by Linnet Ndolo, Judge.

Key legal issues

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01

Dismissal of suit for want of prosecution

Holding

The claim was dismissed for want of prosecution as no reasonable cause was shown for over four years of inaction

Reasoning

Rule 16 permits the Court, or any party, to seek dismissal where no action has been taken within one year of filing. The claimant last acted in June 2018 and offered no explanation for the delay before the pandemic began in March 2020, nor after containment measures were lifted. The Court of Appeal's guidance in Njoroge v Kimani requires a satisfactory reason for delay. None was given, so the claimant was a disinterested litigant and the claim was dismissed.

p. 2
02

COVID-19 pandemic as justification for delay

Holding

The pandemic did not excuse the delay because no action was taken between June 5, 2018 and March 2020, or after containment measures were lifted

Reasoning

The claimant blamed COVID-19 for failing to prosecute the claim, but the pandemic only reached Kenya in 2020, nearly two years after the matter was last in court. The claimant did not explain the period before March 2020, and took no steps even after containment measures were lifted, until the respondent filed the dismissal application. The excuse therefore failed to constitute reasonable cause under Rule 16.

p. 2

Legal principles established

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  • Discretionary power is judicial in nature and must be exercised within the confines of the rules of reason and justice; where there is delay, a satisfactory reason must be offered

Court orders

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  1. 1.The respondent's application dated March 31, 2022 is allowed
  2. 2.The claimant's claim is dismissed for want of prosecution
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 16

Cases cited (1)

  • Njoroge v Kimani
    [2022] KECA 1188
Jurisdiction invoked
Rule 16 of the Employment and Labour Relations Court (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, "Osike v University of Nairobi (Cause 340 of 2018) [2023] KEELRC 1901 (KLR)", Case Analysis (2023). Notice of motion dated March 31, 2022 (claim filed March 20, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1901/eng@2023-07-27

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