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ELRCDismissedNot stated in the judgment· [2024] KEELRC 23 (KLR)

Kenya Engineering Workers Union v Metal Equipment Limited (Cause E272 of 2021) [2024] KEELRC 23 (KLR)

Employment and Labour Relations Court
25 January 2024
LNLINNET NDOLO
306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to throw out a dormant claim because illness explained the delay, and ordered the case to full hearing.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Nairobi on the respondent's notice of motion dated October 11, 2023, seeking dismissal of the claimant's claim for want of prosecution. The claim, filed on April 1, 2021, had last been in court on October 7, 2021, when the court ruled on the claimant's application filed alongside the Memorandum of Claim. The respondent complained that since then the claimant had taken no steps to set the matter down for pre-trial or hearing, and had inordinately failed, refused and/or neglected to prosecute its case, without demonstrating any intention or willingness to do so. In response, the claimant filed an un-commissioned affidavit and appeared to misunderstand the subject matter of the application. Notwithstanding these lapses, the court relied on the oral submissions of the Union Representative, Mr. Araka, that he had suffered ill health resulting from an accident. The court declined to dismiss the claim for want of prosecution and directed the parties to set the matter down for hearing on merit. Costs of the application were reserved to the cause. The judgment was delivered virtually at Nairobi on January 25, 2024 by Linnet Ndolo, Judge, with Mr. Araka appearing for the claimant and Mr. Ondieki for the respondent.

Key legal issues

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Whether the claim should be dismissed for want of prosecution following inordinate delay since October 2021

Holding

The application for dismissal was declined despite the claimant's inaction and defective affidavits, because the Union Representative explained the delay by ill health resulting from an accident

Reasoning

The respondent established that the claim had lain dormant since the ruling of October 7, 2021, with no steps to set the matter down. The claimant's replying affidavit was un-commissioned and appeared to misunderstand the application. However, the court relied on the oral submissions of the Union Representative, Mr. Araka, that he had suffered ill health resulting from an accident, and found dismissal unwarranted, directing instead that the matter proceed to hearing on merit.

p. 2

Legal principles established

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  • A claim will not be dismissed for want of prosecution where the claimant offers a reasonable explanation for the delay, and the court may instead direct the parties to set the matter down for hearing on merit

Court orders

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  1. 1.The respondent's application to dismiss the claim for want of prosecution is declined
  2. 2.The parties are directed to set the matter down for hearing on merit
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (specific provision not stated in the judgment)

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 Engineering Workers Union v Metal Equipment Limited (Cause E272 of 2021) [2024] KEELRC 23 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/23/eng@2024-01-25

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