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ELRCDismissedNot stated in the judgment· [2024] KEELRC 427 (KLR)

Nakitare v County Government of Elgeyo Marakwet & 3 others (Employment and Labour Relations Cause 24 of 2020) [2024] KEELRC 427 (KLR)

Employment and Labour Relations Court
29 February 2024
MOMAUREEN ONYANGO
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to dismiss a delayed employment claim, holding that an active court file shows a suit is not dead—but litigants resting on interim orders risk losing goodwill.

What this practically means

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Executive summary

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The Respondents applied by notice of motion dated 11th May 2023, supported by an affidavit of their counsel Richard M. Wafula, seeking dismissal of the Claimant's claim (filed 15th April 2020) for want of prosecution. They argued the claimant had neglected and failed to prosecute the suit, that over a year had lapsed since the matter was last in court, and that the indolence offended sections 1A, 1B and 3A of the Civil Procedure Act and article 159(2)(b) of the Constitution. The Claimant opposed by affidavit dated 13th June 2023, contending that the parties had been engaged in out-of-court negotiations which had resolved all issues, with a consent awaiting approval, and that a mention date had been fixed for 14th June 2023 to confirm settlement. The Respondents, in a further affidavit sworn by Christine Ngeno, denied any settlement negotiations. The court identified the single issue as whether there was a basis to dismiss the claim for want of prosecution, adopting the Ivita v Kyumbu test of prolonged and inexcusable delay and the interest of justice, and considered Rule 16 of the ELRC (Procedure) Rules. Reviewing the chronology, the court found the file had been active and the suit not ripe for dismissal. It however cautioned the Claimant for enjoying stay orders without pursuing expeditious disposal, and directed that a hearing date would be given at delivery of the ruling unless negotiations were demonstrated. The application was dismissed with each party bearing its own costs.

Key legal issues

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Whether the Claim should be dismissed for want of prosecution under Rule 16 of the ELRC (Procedure) Rules

Holding

The application was dismissed because the court record showed activity within the relevant period; however, the Claimant was cautioned for enjoying interim orders without pursuing expeditious disposal.

Reasoning

The court traced the chronology: the claim was filed on 15th April 2020 with a Notice of Motion; interim orders issued on 17th April 2020; the Claimant fixed mentions in July and October 2021; an application was filed on 25th November 2021; mentions were set for 17th January 2022. Given this activity, the suit was not ripe for dismissal, though the Claimant's indolence after obtaining stay orders was noted.

p. 3

Legal principles established

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  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and whether dismissal is in the interest of justice

Court orders

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  1. 1.The Respondents' application to dismiss the Claim for want of prosecution is dismissed
  2. 2.A hearing date shall be given by the court on the date of delivery of the ruling unless the Claimant demonstrates that negotiations are ongoing and a consent is likely to be recorded in the very near future
  3. 3.Each party shall bear its costs of the application

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Constitution of Kenyaarticle 159(2)(b)
  • Employment and Labour Relations Court (Procedure) RulesRule 16

Cases cited (1)

  • Ivita vs. Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 16 (dismissal of suits 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, "Nakitare v County Government of Elgeyo Marakwet & 3 others (Employment and Labour Relations Cause 24 of 2020) [2024] KEELRC 427 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/427/eng@2024-02-29

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