Rift Valley Railways Workers Union (K) v China Road & Bridge Corporation Kenya; Ministry of Labour, Social Protection State Department of Labour & another (Interested Parties) (Cause 1647 of 2018) [2023] KEELRC 2284 (KLR)
The bottom line
#A Kenyan employment court refused to kill a two-year-old dormant case but gave the claimant 60 days to set it down for hearing or lose it automatically.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this cause should be dismissed for want of prosecution
Key legal issues
#Whether the cause should be dismissed for want of prosecution
The application was declined; the suit was ordered set down for hearing within 60 days, failing which it would stand automatically dismissed
The court adopted the settled principles in Argan Wekesa Okumu v Dima College: the applicant must show inordinate, inexcusable delay and prejudice, and the discretion must be exercised judiciously, with courts preferring to sustain suits rather than terminate them prematurely. Although neither party had taken steps since February 2021 and the delay was considerable, the court considered the Covid-19 pandemic's disruption of court operations and the fact that directions for fixing a hearing date were still in force. Balancing these factors, dismissal on merit being preferable to termination on technicality, the court conditionally sustained the suit.
Legal principles established
#- The absence of a procedural rule on dismissal for want of prosecution does not entitle a litigant to keep a case in court indefinitely; the court may dismiss such a suit in exercise of its discretion, guided by the principles that the applicant must show inordinate, inexcusable delay and prejudice
Court orders
#- 1.The application to dismiss the suit for want of prosecution was not granted
- 2.The suit to be set down for hearing within 60 days of the ruling, and in default it shall stand dismissed for want of prosecution without intervention of any party
- 3.Costs of the suit to abide the main cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the court coupled with Article 159(2) of the Constitution; the ELRC rules contain no provision on dismissal for want of prosecution
Relief refused
#Dismissal of the suit for want of prosecution
The court exercised its discretion to sustain the suit, taking into account Covid-19 challenges, but imposed a conditional dismissal if the suit is not set down within 60 days
Costs
Cost of the suit shall abide the main cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the court in exercise its unfettered discretion will not order the suit dismissed for want of prosecution but will instead order that the same be set down for hearing within 60 days of this ruling and in default the same shall stand dismissed for want of prosecution without intervention of any party.
The principles governing applications for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The Applicant must show that the delay complained of is inordinate, that the inordinate delay is inexcusable and that the Defendant is likely to be prejudiced by such delay
To keep a matter indefinitely in Court is to deny a party the justice of enjoying the fruits of a successful determination or the benefit of planning and paying ofi successful claims against them and moving on with their lives.
Cost of the suit shall abide the main cause.
Issues in the judgment
#The response is described inconsistently, first as a preliminary objection dated 28th December 2018 and then as dated 12th May 2023
The judgment records conflicting dates for when the matter was last in court, paragraph 2 says 2nd February 2021 while paragraph 12 says 26th January 2021 with a mention on 2nd February 2021
The application is described variously as an application dated 1st March 2023 and as a preliminary objection
The case number and neutral citation are not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rift Valley Railways Workers Union (K) v China Road & Bridge Corporation Kenya; Ministry of Labour, Social Protection State Department of Labour & another (Interested Parties) (Cause 1647 of 2018) [2023] KEELRC 2284 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2284/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.