Were v Laborex Kenya Limited (Employment and Labour Relations Cause E6460 of 2020) [2024] KEELRC 1829 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution under Rule 16 of the ELRC Procedure Rules
The application was dismissed; the claimant showed interest in prosecuting the suit and the delay was not such that justice could not be done
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.
Legal principles established
#- 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
#- 1.The application for dismissal of the suit dated 5th March 2024 is dismissed
- 2.Throw away costs of Kshs 10,000/- to be paid by the claimant to the respondent's advocates within 30 days
- 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.If the claimant does not pay the costs, the Court will not give him audience further
- Jurisdiction invoked
- 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, "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.