George Otieno v Kenya Kazi Services Limited

3. The Respondent contends that, by dint of Order 17 Rule 2(5) of the Civil Procedure Rules, the suit stood dismissed after two years of inactivity. In the alternative, it argues that the delay of about four years is prolonged and inexcusable, that it demonstrates loss of interest, and continues to expose it to costs and prejudice. 4. The Claimant opposed the application through his Replying Affidavit sworn on 5th February 2026. He maintains that he remains interested in prosecuting the claim and has attempted to obtain a hearing date, but was informed that older matters were being accorded priority due to the backlog occasioned by the COVID-19 pandemic. 5. The Claimant further states that the matter came up for mention on 26th November 2025 and was given a further mention date of 8th December 2025. He therefore argues that the present application, filed on 3 rd December 2025, was lodged when the suit was active and already had a date before Court. The Respondent/Applicant’s Submissions 6. The Respondent submits that the suit ought to be dismissed for want of prosecution on the ground that the Claimant had failed to take any substantive step to prosecute it since the Court delivered its ruling on 20th December 2021. It contends that the delay of approximately four years was prolonged, inordinate, and unexplained, and demonstrated Claimant's lack of interest in pursuing the claim. 2 |RULING CAUSE NO. E6592 OF 2020 the

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7. The Respondent further submits that, pursuant to Order 17 Rule 2(5) of the Civil Procedure Rules, the suit stood dismissed by operation of law upon the expiry of two years without any step being taken. It therefore urged the Court to declare that the suit stood dismissed on 20 th December 2022 or, in the alternative, to exercise its discretion and dismiss it for want of prosecution. 8. According to the Respondent, the duty to prosecute the suit rested upon the Claimant as the party who instituted the proceedings. It argued further that the Claimant had not produced any correspondence to the Court registry, invitations to fix a hearing date, or other documentary evidence supporting the alleged attempts to progress the matter. It further submitted that the COVID-19 pandemic and the alleged unavailability of hearing dates could not sufficiently explain the entire period of inactivity. 9. The Respondent maintained that the continued pendency of the suit exposed it to uncertainty, expense and prejudice and offended the principle that litigation should be concluded expeditiously. In support of its position, it relied, inter alia, on Kihara v Thumbi [2022] KEELC 3333 (KLR), Utalii Transport Company Limited & 3 others v NIC Bank & another [2014] eKLR, Eliud Munyua Mutungi v Francis Murewa [2014] eKLR, Rajesh Rughani v Fifty Investments Limited & another [2005] eKLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR. 3 |RULING CAUSE NO. E6592 OF 2020

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10. The Applicant consequently prays that the suit be dismissed with costs. The Claimant/Respondent’s Submissions 11. The Claimant opposed the application and submitted that he remains desirous of prosecuting the claim. He attributed the delay to the disruption occasioned by the COVID-19 pandemic, the resulting backlog within the Court and the prioritization of matters filed before 2020. He maintained that he had made several attempts to obtain a hearing date, but dates were unavailable owing to the Court’s caseload. 12. The Claimant disputed the assertion that the suit had remained inactive for approximately four years, submitting that the matter came before the Court for mention on 26 th November 2025 and was fixed for a further mention on 8 th December 2025. He states further that, when the present application was filed on 3rd December 2025, the suit was active and already had a date before the Court. 13. The Claimant contended that dismissal would unjustly deny him an opportunity to have the dispute determined on its merits, contrary to the right to a fair hearing under Article 50(1) of the Constitution. He further submitted that the Respondent had not demonstrated any specific prejudice that could not be addressed by allowing the matter to proceed to hearing. 14. Relying on Ivita v Kyumbu [1984] KLR 441 and Geoffrey Mbaabu & another v M’Maingi M’Laaru & 4 |RULING CAUSE NO. E6592 OF 2020

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Another, the Claimant submitted that dismissal for want of prosecution is discretionary and that, even where delay is established, a suit should not be dismissed where justice can still be done between the parties without occasioning prejudice. 15. The Claimant further argues that Rule 43 of the Employment and Labour Relations Court (Procedure) Rules, 2024 was the applicable procedural framework and that dismissal should be invoked only as a measure of last resort. 16. The Claimant finally urges the Court to dismiss the application and allow the suit to proceed to hearing on merit. Analysis and determination 17. The issues that present for determination are: i. Whether the suit stood dismissed by operation of Order 17 Rule 2(5) or ii. Whether the suit should, in the alternative, be dismissed for want of prosecution; 18. For starters, and as correctly submitted by the Claimant/Respondent, the applicable procedural regime for an application such as the one before the Court is the Employment and Labour Relations Court (Procedure) Rules, 2024, particularly Rule 43, and not the Civil Procedure Rules cited by the Applicant. 5 |RULING CAUSE NO. E6592 OF 2020

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19. Having said that, the jurisdiction to dismiss a suit for want of prosecution is discretionary and must be exercised judiciously, having regard to the circumstances of each case. In Kamau v Gichana & another (Petition E073 of 2021) [2023] KEELRC 738 (KLR), the Court observed that dismissal for want of prosecution is not automatic and that each case must be determined on its peculiar circumstances. 20.The Court is mindful that the right to be heard does not relieve a litigant of the obligation to prosecute his or her case diligently. In Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another [2016] KEHC 6855 (KLR), emphasized that courts proceedings where should justice the Court to sustain endeavour permits, while ensuring adherence to procedural requirements and the expeditious disposal of disputes. The appropriate remedy must therefore be proportionate to the circumstances of the case. 21.The first prayer is premised on the assertion that no step was taken after 20th December 2021 and that the suit therefore automatically stood dismissed on 20 th December 2022. That premise is not borne out by the Court record. The record shows that the matter came up for mention on 26th November 2025 and was fixed for a further mention on 8th December 2025. The present application was filed on 3 rd December 2025, during the subsistence of those directions. 22.A court attendance and the issuance of a further date are steps on the record which are inconsistent with the 6 |RULING CAUSE NO. E6592 OF 2020

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proposition that, as at the date of the application, the suit had remained wholly dormant and already stood dismissed. 23.I therefore find that the Applicant has not established the factual basis for the declaration sought in prayer 1 of the application. 24.On the alternative prayer, the period between 20 th December 2021 and 26th November 2025 was undoubtedly lengthy. The Claimant’s explanation regarding scarcity of dates and prioritization of older matters is broad and is not supported by correspondence to the registry, invitations to fix a date, or other documentary evidence showing the alleged attempts. A litigant remains under a duty to follow up and take reasonable steps to progress his case. 25.The Respondent has, however, not demonstrated any specific prejudice occasioned by the delay beyond the general assertion of uncertainty, expense and continued exposure to litigation. In Ivita v Kyumbu [1975] KEHC 4 (KLR), the Court emphasized that the Respondent should demonstrate how the delay has prejudiced, or is likely to prejudice, the fair trial of the case. 26.No particular witness has become unavailable, no document has been lost, and no other evidentiary disadvantage has been identified in the case. 27.The Court is therefore not persuaded that the delay, though undoubtedly lengthy, has reached the threshold at which dismissal is the only just remedy. The interests of justice 7 |RULING CAUSE NO. E6592 OF 2020

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would, in my view, be better served by allowing the claim to proceed while imposing appropriate directions to ensure no further delay. 28.The Court also notes that the matter had returned to Court on 26th November 2025 and had in fact been given a further mention date before the present application was filed. 29.Article 159(2)(b) of the Constitution requires that justice shall not be delayed, while Articles 48 and 50(1) protect a litigant’s right of access to justice and the right to a fair hearing. These provisions do not excuse indolence, but require the Court to adopt a proportionate response. 30.I consequently find that, although the delay was prolonged, the court can still do justice to both parties, the Claimant having expressed readiness to prosecute the claim. The alternative prayer for dismissal is therefore declined. 31.In the upshot, the application dated 3 rd December, 2025 is determined in the following terms: i. The prayer for a declaration that the suit stood dismissed by operation of law is declined. ii. The prayer for dismissal of the suit for want of prosecution is declined. iii. The Claimant shall, within twenty one (21) days from the date of this Ruling, take the necessary steps to have the suit fixed for hearing, and in default, the Respondent shall be at liberty to move the Court as appropriate. 8 |RULING CAUSE NO. E6592 OF 2020

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iv. Costs shall be in the cause. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. C. N. BAARI JUDGE Appearance: Mr. Andiwo present for the Respondent/Applicant Mr. Ochwa present for the Claimant/Respondent Ms. Esther S -C/A 9 |RULING CAUSE NO. E6592 OF 2020

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