Osano v Registrar Nursing Council of Kenya & another (Petition 86 of 2015) [2023] KEELRC 3446 (KLR)
The bottom line
#Kenya's Employment Court dismissed an employment petition because the petitioner did nothing for over a year and offered no proof of a genuine excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the one-year threshold for dismissal for want of prosecution was met
Yes; the matter was last in court on 14th December 2021 and the application was filed 19th June 2023, exceeding one year of inaction
The court applied Rule 16 of the ELRC (Procedure) Rules, 2016 and Order 17 Rule 2 of the Civil Procedure Rules, which permit dismissal where no step has been taken for one year. The Petitioner's reliance on the two-year rule in the Civil Procedure (Amendment) Rules 2020 was rejected because this Court's own Rules set a one-year threshold. No steps by either party were shown since December 2021.
Whether the alleged missing court file excused the delay
No; the Petitioner produced no evidence, and filed no affidavit of his own, to substantiate the claim that the file was missing
The Petitioner's response was sworn and argued by his advocate, with no supporting documentation such as letters or emails showing attempts to trace the file or request a hearing date. The Respondents contended, without contradiction on evidence, that the allegation was unsubstantiated. The court treated the excuse as unproven and found the Petitioner had shown disinterest in prosecuting an eight-year-old suit.
Whether dismissal would cause prejudice outweighing the Petitioner's right to be heard
The balance favoured dismissal; the key witness (the former 1st Respondent) had left office and could not effectively testify if the suit continued
The Applicants argued that the term of the individual who held the office of the 1st Respondent and was a key witness had expired, jeopardising their defence. Applying the Ivita v Kyumbu principle that justice must be done to both parties and taking account of fading memories and missing witnesses, the court found the continued pendency prejudicial and abusive of court process.
Legal principles established
#- Under the ELRC (Procedure) Rules 2016, a suit in which no step has been taken for one year is amenable to dismissal if no reasonable cause is shown; the two-year automatic dismissal period in the amended Civil Procedure Rules does not displace this
- An applicant seeking dismissal for want of prosecution need only demonstrate that no action has been taken by either party for one year and that the failure was for no good cause
Court orders
#- 1.The Petitioner's suit is dismissed for want of prosecution
- 2.Costs of the suit and of the application are awarded to the Respondents
- Jurisdiction invoked
- Order 17 Rule 2 of the Civil Procedure Rules and Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osano v Registrar Nursing Council of Kenya & another (Petition 86 of 2015) [2023] KEELRC 3446 (KLR)", Case Analysis (2023). Petition No 86 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3446/eng@2023-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.