[2024] KEELRC 1193 (KLR)

Achode & another v National Council for Law Reporting & another (Cause 708 of 2018) [2024] KEELRC 1193 (KLR) (9 May 2024) (Ruling)

Neutral citation: [2024] KEELRC 1193 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 708 of 2018

L Ndolo, J

May 9, 2024

Between

Monica Mellan Achode

1st Claimant

Cornelius W Lupao

2nd Claimant

and

The National Council For Law Reporting

1st Respondent

The State Corporation Advisory Committee

2nd Respondent

Ruling

1. By its Notice of Motion dated 12th October 2023, the 1st Respondent seeks dismissal of the Claimants’ claim, for want of prosecution.

2. The Motion is supported by an affidavit sworn by the 1st Respondent’s Chief Executive Officer and Editor, Prof. Jack Busalile Mwimali, and is based on the grounds that:a.Since filing the claim on 14th May 2018, the Claimants have, more than 5 years and 4 months later, failed to take any steps to prosecute the claim or fix it for hearing;b.The claim was last in court on 19th June 2018, when the Court dismissed the Claimants’ application for interim injunction;c.The Claimants, who moved the Court under Certificate of Urgency in May 2018, have clearly lost interest in the claim after their application for interim relief was declined in June 2018;d.The Claimants’ prolonged inaction since June 2018, raises a conclusive presumption that they have abandoned their claims and grievances against the Respondents;e.The Claimants’ prolonged inaction in setting the claim down for hearing is inexcusable;f.The 1st Respondent’s Deputy Chief Executive Officer, whose appointment the Claimants sought to challenge, has served in her position unimpeded for over 5 years and 4 months, thereby rendering the claim moot. As such, there is no good cause for the claim to be maintained in the court docket;g.The Claimants’ prolonged delay in prosecuting the claim is extremely prejudicial to the 1st Respondent. For instance:i.More than 5 years and 4 months since the institution of the claim, the dispute continues to reflect as a potential liability in the 1st Respondent’s books. This uncertainty is immensely detrimental to the 1st Respondent’s operations and mandate;ii.The 1st Respondent will be asked to defend a claim in respect of which 5 years and 4 months have passed since the facts which allegedly gave rise to the claim. The 1st Respondent’s witnesses’ recollection of the facts in dispute will have been negatively impacted.h.The continued pendency of the claim is not only an abuse of the court process but also an affront to the constitutional imperatives set out in Articles 50(1) & (2) (e) and 159(2)(b) & (c) of the Constitution;i.Public interest abhors the conduct of court matters in a sloppy and cavalier manner;j.In the circumstances, the Court should exercise its constitutional and statutory mandate and dismiss the claim for want of prosecution.

3. The Claimants did not respond to the Motion, in spite of due notification.

4. Rule 16 of the Employment and Labour Relations Court Procedure Rules provides as follows: 16. (1)In any suit in which no application has been made in accordance with Rule 15 or no action has been taken by either party within one year from the date of its filing, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed and if no reasonable cause is shown to its satisfaction, may dismiss the suit.(2)….(3)Any party to the suit may apply for dismissal as provided in paragraph (1).

5. The principles to be taken into account in issuing an order for dismissal of a suit for want of prosecution were established in Ivita v Kyumbu [1984] eKLR 441 as follows:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay? Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay…He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged, if the court is satisfied with the Plaintiff’s excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

6. In the present case, the Claimants did not bother to move the Court after 19th June 2018, when their application for interim relief was disallowed. Additionally, they did not respond to the 1st Respondent’s application seeking dismissal of the claim for want of prosecution.

7. The Claimants’ inaction has not been explained and I have no hesitation in reaching the conclusion that they have lost interest in the claim.

8. The 1st Respondent’s application dated 12th October 2023 is therefore allowed and the Claimants’ claim is dismissed for want of prosecution.

9. Each party will bear their own costs.

10. Orders accordingly.

DELIVERED VIRTUALLY AT NAIROBI THIS 9TH OF DAY MAY 2024LINNET NDOLOJUDGEAppearance:No appearance for the ClaimantsMr. Oloo for the 1st RespondentMr. Mulili for the 2nd Respondent