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ELRCDismissedNot stated in the judgment· [2025] KEELRC 170 (KLR)

Egerton University v Mwanzia (Employment and Labour Relations Appeal E001 of 2023) [2025] KEELRC 170 (KLR)

High Court of Kenya
31 January 2025
AMAnna Ngibuini Mwaure
2,100 words in judgment
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The bottom line

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Kenya's High Court refused to dismiss a delayed appeal because the court registry, not the appellant, caused the delay.

What this practically means

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Executive summary

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The Respondent/Applicant moved the court by Notice of Motion dated 26th September 2024 seeking dismissal of the Appellant/Respondent's appeal filed on 6th February 2023 for want of prosecution, with costs. The applicant argued that 19 to 20 months had elapsed without the appellant taking any step, that the appeal was an abuse of process, and relied on Order 42 Rule 35 and Order 51 Rule 3 of the Civil Procedure Rules and on inherent jurisdiction to prevent abuse of court process. The Appellant/Respondent opposed through a replying affidavit sworn by its legal officer, explaining that the delay was occasioned by the court registry's failure to avail typed proceedings - the typing pool being understaffed - despite diligent follow-up including a letter from the Deputy Registrar to the Chief Magistrate dated 7th February 2023. The appellant pointed out that the proceedings were availed on 5th November 2024 and the record of appeal filed on 6th November 2024, that the decretal sum of Kshs.2,337,260/= had been deposited in a joint interest-earning account as early as 16th January 2023, and that no prejudice would be suffered. Relying on the Ivita v Kyumba test as applied in Rajesh Rughani v Fifty Investments Limited, and on Tome v Attorney General citing Hassan Nyange Charo, the court held that the delay was beyond the appellant's control and that it would be unjust to lock the appellant out of the seat of justice through no fault of its own. The application dated 26th September 2024 was dismissed. The appellant was directed to serve the record of appeal within 14 days and to canvass the appeal without further delay, with a mention on 13th February 2025 for directions.

Key legal issues

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Whether the appeal should be dismissed for want of prosecution

Holding

The application was not merited; the appeal was not dismissed because the delay in filing the record of appeal was caused by the court registry's delay in supplying typed proceedings, which was beyond the appellant's control, and the record of appeal had since been filed

Reasoning

The court applied the Ivita v Kyumba test as adopted in Rajesh Rughani v Fifty Investments Limited. The Deputy Registrar had requested the proceedings from the Chief Magistrate as early as 7th February 2023, showing diligence. The appellant had also deposited the decretal sum of Kshs.2,337,260/= in a joint interest-earning account as early as 16th January 2023, securing the respondent. The record of appeal was filed on 6th November 2024 immediately upon receipt of the proceedings on 5th November 2024.

p. 5

Legal principles established

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  • A litigant who is diligent in pursuing typed proceedings but is delayed by the court registry should not be locked out of the seat of justice for want of prosecution
  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable, and whether justice can nevertheless be done despite the delay

Court orders

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  1. 1.The application dated 26th September 2024 is dismissed
  2. 2.The Appellant/Respondent to serve the record of appeal upon the Respondent/Applicant within 14 days from the date of the ruling
  3. 3.Parties to canvass the appeal with no further delay
  4. 4.Case to be mentioned on 13th February 2025 to give further directions on the appeal
Jurisdiction invoked
Inherent jurisdiction of the court under Order 51 Rule 3 of the Civil Procedure Rules; Article 159 of the Constitution

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, "Egerton University v Mwanzia (Employment and Labour Relations Appeal E001 of 2023) [2025] KEELRC 170 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/170/eng@2025-01-31

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