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ELRCDismissed· [2024] KEELRC 1829 (KLR)

Were v Laborex Kenya Limited (Employment and Labour Relations Cause E6460 of 2020) [2024] KEELRC 1829 (KLR)

Employment and Labour Relations Court
10 July 2024
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to dismiss a slow-moving employment case because the claimant showed genuine interest in pursuing it.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Motion dated 5th March 2024 seeking dismissal of the claimant's suit, filed on 16th November 2020, for want of prosecution. It argued that 3 years and 4 months had passed without steps by the claimant, that the delay was inordinate and inexcusable, that the claimant had lost interest, and that continued pendency prejudiced the applicant and wasted judicial resources. It relied on Order 17 Rule 2(5) of the Civil Procedure Rules. The Claimant/Respondent opposed through a replying affidavit by its advocate, Shapley Barret & Co., which came on record on 5th July 2023 in place of Tebino & Associates Advocates, and had since written to the Deputy Registrar for pre-trial dates and attended mentions on 21st September 2023, 8th November 2023 and 14th December 2023, which mentions were conducted without notice to it. On 6th March 2024 the claimant's advocate lost connection during the virtual session. The court framed one issue: whether the suit should be dismissed for want of prosecution. Applying Rule 16 of the ELRC Procedure Rules and the Ivita v Kyumbu test as restated in Mwangi S. Kimenyi, the court held that although slothfulness should not be encouraged, a ready and willing litigant should not be locked out of justice. The claimant had demonstrated interest. The application was dismissed, with throw away costs of Kshs 10,000/- awarded to the respondent's advocates, payable within 30 days, and the suit was to be fixed for pre-trial directions within 30 days, failing which it would stand dismissed.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Rule 16 of the ELRC Procedure Rules

Holding

The application was dismissed; the claimant showed interest in prosecuting the suit and the delay was not such that justice could not be done

Reasoning

The court applied the Ivita v Kyumbu test as restated in Mwangi S. Kimenyi: whether the delay is prolonged and inexcusable and whether justice can be done despite it. The claimant changed advocates in mid-2023 and had been approaching the court for pre-trial directions, appearing for mentions. Though the court would not encourage slothfulness, the cardinal rule is not to lock a litigant out of justice where they are ready and willing to prosecute, provided the dismissal would cause greater prejudice to the claimant than prejudice to the respondent.

p. 4

Legal principles established

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  • An applicant for dismissal for want of prosecution must demonstrate no action has been taken by either party for one year and that the failure was for no good cause
  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay

Court orders

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  1. 1.The application for dismissal of the suit dated 5th March 2024 is dismissed
  2. 2.Throw away costs of Kshs 10,000/- to be paid by the claimant to the respondent's advocates within 30 days
  3. 3.Case to be fixed for pre-trial directions within 30 days, failing which the orders will be cancelled and the suit will stand dismissed
  4. 4.If the claimant does not pay the costs, the Court will not give him audience further

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(5)
  • Employment and Labour Relations Court Procedure RulesRule 16
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Kenya Plantation and Agricultural Workers Union v Unliver Tea K Limited
    [2021] eKLR
  • George Gatere Kibata v George Kuria Mwaura & another
    [2017] eKLR
  • Ivita -vs- Kyumbu
    (1984) KLR 441
  • Mwangi S. Kimenyi -vs- Attorney General and Another
    Civil Suit Misc. No. 720 of 2009
  • Thathini Development Company Limited v Mombasa Water & Sewerage Company & another
    [2022] eKLR
Jurisdiction invoked
Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Were v Laborex Kenya Limited (Employment and Labour Relations Cause E6460 of 2020) [2024] KEELRC 1829 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1829/eng@2024-07-10

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