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ELRCDismissedNot stated in judgment· [2023] KEELRC 2751 (KLR)

Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers v United States International University-Africa & another (Cause E166 of 2021) [2023] KEELRC 2751 (KLR)

Employment and Labour Relations Court
2 November 2023
LNLinnet Ndolo
619 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to dismiss a stale claim because an appeal was pending, meaning pending appeals can justify prosecution delays.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Linnet Ndolo J on 2nd November 2023, determined a Notice of Motion dated 13th April 2023 by which the Respondents sought dismissal of the Claimant's claim for want of prosecution. The Respondents argued that pleadings closed on 5th August 2021 and no steps had been taken for almost two years, that the Claimant had lost interest, and that the continued existence of the claim burdened them with legal costs. The application was supported by an affidavit of counsel Viviane N. Otukho, who later deponed in a supplementary affidavit that the Claimant lacked a substantive explanation for the delay and that the alleged delays in the court giving hearing dates were unsupported by evidence. The Claimant opposed through a replying affidavit by Secretary General Albert Njeru Obed, explaining that the matter was pending before the Court of Appeal, awaiting hearing of an appeal from the interlocutory ruling delivered by Makau J on 13th May 2021, and that the court had not been assigning hearing dates for matters filed in 2021. The court noted there was no dispute that the appeal was pending, and although the Respondents asserted the absence of a stay of proceedings order, the court held that where an interlocutory appeal is pending, good practice is to allow the appeal to proceed since its outcome may bear on the trial proceedings. The court accordingly accepted the Claimant's explanation for the delay and declined the Respondents' application, with costs in the cause.

Key legal issues

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01

Whether pendency of an interlocutory appeal without a stay of proceedings order justifies delay in prosecuting a claim

Holding

Yes - the Court accepted the pendency of the appeal as a valid explanation for the delay and declined the dismissal application

Reasoning

Although the Respondents pointed out that there was no order for stay of proceedings, the Court held that where an interlocutory appeal is pending, good practice dictates allowing the appeal to proceed because its outcome could bear on the proceedings before the trial court. The undisputed pendency of the appeal from Makau J's ruling of 13th May 2021 therefore constituted a substantive explanation for the delay.

p. 2

Legal principles established

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  • Where an interlocutory appeal is pending, good practice is to allow the appeal to proceed before the main claim is prosecuted, as its outcome may bear on the trial court proceedings

Court orders

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  1. 1.The Respondents' application dated 13th April 2023 is declined with costs in the cause
Jurisdiction invoked
Inherent jurisdiction and overriding objectives of the law (dismissal for want of prosecution)

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, "Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers v United States International University-Africa & another (Cause E166 of 2021) [2023] KEELRC 2751 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2751/eng@2023-11-02

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