[2021] KEELRC 950 (KLR)
The court found that the delay in prosecuting the appeal was largely attributable to the Respondent and his agents, who engaged in actions before the High Court rather than submitting to the Employment and Labour Relations Court for determination. As such, the application for dismissal for want of prosecution was...
Source-derived case information.
- Citation
- [2021] KEELRC 950 (KLR)
- Parties
- Appellant: Agricultural Society of Kenya; Respondent: Benjamin K. Kwambai; Respondent: Faith Muthee t/a Compliance Auctioneers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Appeal 34 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Stay Orders, Pretrial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agricultural Society of Kenya
Appellant
Benjamin K. Kwambai
Respondent
Faith Muthee t/a Compliance Auctioneers
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the Appellant.
- 2 Whether the delay in prosecuting the appeal is attributable to the Appellant or the Respondent.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was largely attributable to the Respondent and his agents, who engaged in actions before the High Court rather than submitting to the Employment and Labour Relations Court for determination. As such, the application for dismissal for want of prosecution was self-defeating and not merited. The court dismissed the motion with costs to the Appellant and directed that the matter be set down for pretrial directions before another judge, as the presiding judge recused himself due to having formed an opinion on the matter.
Court Disposition
application dismissed
Orders
- The application for dismissal of the appeal for want of prosecution is dismissed with costs to the Appellant.
- The matter is to be set down for pretrial directions before another judge on 28th September 2021.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
APPEAL NO. 34 OF 2019
(Formerly High Court Civil Appeal No. 508 of 2019)
AGRICULTURAL SOCIETY OF KENYA.............................................APPELLANT
VERSUS
BENJAMIN K. KWAMBAI.............................................................1ST RESPONDENT
FAITH MUTHEE t/a COMPLIANCE AUCTIONEERS............2ND RESPONDENT
RULING
1. The application before me is the notice of motion of 4th June 2021 by the 1st Respondent/Applicant. The Respondent seeks the dismissal of the Appeal for want of prosecution. The application is premised on the grounds that there has been no prosecution of the appeal since it was filed as the Appellant enjoys stay orders. The Appellant on its part asserts that there is intent to prosecute the appeal and that what is awaited are proceedings from the Subordinate Court.
2. The appeal was filed in April 2019 and has been the subject of a series of sideshows brought on by action before the High Court instead of submitting to this forum for the determination of the dispute herein. As such the delay is largely attributable to the Respondent, his servants and/or agents and as such the application by the Respondent is self-defeating and only suitable for dismissal as I hereby do. Motion is dismissed with costs to the Appellant.
3. The matter to be set down for pretrial directions before any other Judge of the Court on 28th September 2021 as I have already formed an opinion on the matter due to the shenanigans I have seen and as such recuse myself.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF SEPTEMBER 2021
Nzioki wa Makau
JUDGE