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ELRCDismissedNot stated in judgment· [2023] KEELRC 2185 (KLR)

Kimani v Ngigi (Cause 1129 of 2018) [2023] KEELRC 2185 (KLR)

Employment and Labour Relations Court
22 September 2023
SRStella Rutto
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to dismiss a dormant 2018 employment case, ruling that registry delays and Covid-19 justified the claimant's slow progress.

What this practically means

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Executive summary

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The respondent/applicant, through an application dated February 20, 2023 supported by the affidavit of his counsel Migui Mungai, sought dismissal of the claimant's 2018 suit for want of prosecution, asserting over three years of inordinate, deliberate delay after the matter was certified ready for hearing on December 11, 2019. The claimant opposed through a replying affidavit citing difficulties in obtaining a hearing date: the registry advised that priority went to 2017 matters and below, the 2018 diary had not opened, Covid-19 restricted access to court premises, and the claimant fell ill with Covid-19 in 2021. The applicant countered that a notice fixing 2019 and 2020 matters had been published. Both sides filed written submissions, with the applicant relying on Argan Wekesa, Tinega and Thathini, and the claimant on Ivita v Kyumbu. The court framed a single question: whether the suit was liable to dismissal for want of prosecution, to be determined under rule 16(1) of the ELRC (Procedure) Rules, 2016, a replica of Order 17 rule 2 of the Civil Procedure Rules. Applying the Ivita test, the court found from exhibited email correspondence that the claimant's advocate made persistent attempts to fix hearing dates and was told the 2018 diary was unopened; the delay was therefore not entirely attributable to the claimant and could not be termed inordinate or inexcusable. The court also took judicial notice of Covid-19 disruptions and echoed John Nahashon Mwangi that dismissal is a draconian act to be exercised sparingly. The application was not allowed; the matter was directed to be listed for hearing on a priority basis, with costs in the cause.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under rule 16(1) of the ELRC (Procedure) Rules, 2016

Holding

Dismissal refused; the delay was neither inordinate nor inexcusable and was largely attributable to the court registry and the Covid-19 pandemic

Reasoning

Rule 16(1) permits dismissal where no action is taken within one year, but idleness does not automatically warrant dismissal; each case turns on its circumstances. Email correspondence showed the claimant's advocate repeatedly sought hearing dates from 2020 to 2021 and was told the 2018 diary was not open. The court took judicial notice of Covid-19 disruptions and, noting no notice fixing 2018 matters was shown, gave the claimant the benefit of the doubt.

p. 3

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable, and if so, whether justice can still be done despite the delay
  • Dismissal for want of prosecution is a draconian remedy to be exercised sparingly and judiciously

Court orders

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  1. 1.The application dated February 20, 2023 seeking dismissal of the suit for want of prosecution is not allowed
  2. 2.The matter to be listed for hearing on a priority basis, being a 2018 matter
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 16(1)
  • Civil Procedure RulesOrder 17 rule 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Argan Wekesa v Dima College & 4 others
    (2015) eKLR
  • Tinega v National Cereals & Produce Board
    (2023) ELRC 29 (KLR)
  • Thathini Development Company Limited v Mombasa Water & Sewerage Company & another
    (2022) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
  • John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, rule 16(1)

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, "Kimani v Ngigi (Cause 1129 of 2018) [2023] KEELRC 2185 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2185/eng@2023-09-22

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