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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 3394 (KLR)

Mburu v Telkom Kenya Limited (Employment and Labour Relations Cause 504 of 2017) [2023] KEELRC 3394 (KLR)

Employment and Labour Relations Court
20 December 2023
AMAnna Ngibuini Mwaure
2,282 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 revive an employment claim dismissed for want of prosecution, finding a 20-month delay in seeking reinstatement inexcusable.

What this practically means

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Executive summary

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The claimant/applicant filed a Notice of Motion dated May 15, 2023 in the Employment and Labour Relations Court at Nairobi seeking review and setting aside of orders made on October 26, 2021 dismissing her claim (filed March 14, 2017) for want of prosecution, referral of the parties to mediation, and costs in cause. She attributed the non-prosecution to her erstwhile advocates, asserting she maintained regular contact and that her advocates were never informed of the dismissal despite correspondence with the court. The respondent opposed, contending there was inordinate and inexcusable delay, that successive advocate firms took no steps to prosecute the suit, that the incoming advocates failed to conduct due diligence, and that reinstatement would prejudice its right to a fair trial as its witnesses had left its employment. The court, Anna Ngibuini Mwaure J, framed one issue: whether the dismissal orders of October 26, 2021 should be set aside. Applying the principles in Chabari, Patel v EA Cargo Handling Services, Shah v Mbogo and Mbogo v Shah, and Gold Lida Limited, the court held that the claimant's conduct showed a litigant not keen on prosecuting the matter, that she failed to show personal initiative, and that the delay of one year and seven months in bringing the application was inordinate and inexcusable. The respondent's prejudice through loss of witnesses weighed against reinstatement. The application was dismissed with no orders as to costs, delivered virtually in Nairobi on December 20, 2023.

Key legal issues

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01

Whether the dismissal of the claim for want of prosecution should be set aside and the suit reinstated

Holding

The application was dismissed; the claimant's delay of one year and seven months was inordinate and inexcusable and she failed to show personal diligence in prosecuting the claim

Reasoning

The court applied the principles in Patel v EA Cargo Handling Services, Shah v Mbogo and Mbogo v Shah as restated in Chabari and Gold Lida: the discretion to set aside is wide but must be exercised judiciously to avoid injustice. The claimant filed the suit in 2017 but took no steps between November 13, 2017 and the dismissal on October 26, 2021, and lodged the reinstatement application one year seven months after dismissal without satisfactory explanation. The respondent would be prejudiced as its witnesses had left its employment, affecting its right to a fair trial.

p. 3

Legal principles established

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  • The court's discretion to set aside an ex parte dismissal order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but is not designed to assist a litigant who deliberately seeks to obstruct or delay the course of justice
  • It may be improper to reinstate a suit where the claimant has done nothing to prosecute the suit for a long period and the delay is inexcusable

Court orders

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  1. 1.The Notice of Motion dated May 15, 2023 seeking review and setting aside of the dismissal orders of October 26, 2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 rule 15
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (8)

  • Ferdinand Anga'nya Yatoli v Hennesis Hotel
    [2016] eKLR
  • Franklin J. B. Chabari v Tharaka Nithi County Government & another
    [2019] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shah v Mbogo
    [1967] EA 116
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Mbogo v Shah
    [1968] EA 93
  • Gold Lida Limited v Nic Bank Limited & 2 others
    [2018] eKLR
  • Mbogo & another v Shah
    EALR 1908
Jurisdiction invoked
Inherent powers under Section 3A of the Civil Procedure Act and Order 51 rule 15 of the Civil Procedure Rules to set aside orders made ex parte

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, "Mburu v Telkom Kenya Limited (Employment and Labour Relations Cause 504 of 2017) [2023] KEELRC 3394 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3394/eng@2023-12-20

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