P.J Dave Flowers Limited v Barasa (Appeal 64 of 2018) [2024] KEELRC 731 (KLR)
The bottom line
#A Kenyan employment appeal was permanently dismissed because the appellant waited nearly four years without pushing the case forward.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient grounds existed to set aside dismissal of the Appeal for want of prosecution
No; the application was dismissed.
The record showed the appeal was filed on 30th November 2018 with no activity until June 2022. Both the Mention Notice and Notice to Show Cause were dispatched to the Appellant's Advocate's disclosed email address. The claim of spam-folder delivery was unsupported, and the Appellant took over three months from dismissal (24th October 2022) to file the application (25th January 2023). The asserted blanket stay on WIBA matters was implausible since the Court of Appeal decision predated the trial judgment. The delay was inordinate and unexplained.
Scope of the court's discretion to reinstate a suit dismissed for want of prosecution
The discretion is unfettered but not absolute; it must be exercised judiciously on facts and legal principles.
Relying on Shah v Mbogo [1967] EA 116, the Court held that the discretion serves to avoid injustice from accident, inadvertence or excusable mistake, but not to aid a party who has deliberately delayed the cause of justice. The Appellant's inaction over almost four years placed it in the latter category.
Legal principles established
#- The court's discretion to reinstate a suit dismissed for want of prosecution must be exercised judiciously on the basis of facts and legal principles, to avoid injustice from accident, inadvertence or excusable mistake, but not to assist deliberate delay.
- A party who lodges an appeal is duty bound to prosecute it without inordinate delay and need not wait for court notices to compel its appearance.
Court orders
#- 1.The Application dated 16th December 2022 is dismissed with no orders as to costs
- Jurisdiction invoked
- Inherent discretion to reinstate a suit dismissed for want of prosecution; Article 159 of the Constitution invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P.J Dave Flowers Limited v Barasa (Appeal 64 of 2018) [2024] KEELRC 731 (KLR)", Case Analysis (2024). Not stated in full in the judgment (initially filed as ELRCA No. 1574 of 2018, later re-allocated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/731/eng@2024-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.