[2021] KEELRC 2125 (KLR)
The court found that the Claimant had actively prosecuted the claim, as evidenced by the record, and that delays were not solely attributable to him. The court also considered the impact of the COVID-19 pandemic, which had disrupted normal judicial operations and limited access to court services, making it...
Source-derived case information.
- Citation
- [2021] KEELRC 2125 (KLR)
- Parties
- Claimant: Anthony Njuguna; Respondent: Afri-China International Co. Ltd; Respondent: Zheng Miaoguo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 437 of 2018
- Procedural Posture
- Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application declined; claim transferred
- Judges
- J Rika
- Legal Topics
- Dismissal for Want of Prosecution, Transfer of Suit, Forum Non Conveniens, Judicial Notice Covid19
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Njuguna
Claimant
Afri-China International Co. Ltd
Respondent
Zheng Miaoguo
Respondent
Procedural Posture
Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the claim should be dismissed for want of prosecution.
- 2 Whether the claim should be transferred to a different court based on connecting factors.
Ratio Decidendi
The court found that the Claimant had actively prosecuted the claim, as evidenced by the record, and that delays were not solely attributable to him. The court also considered the impact of the COVID-19 pandemic, which had disrupted normal judicial operations and limited access to court services, making it inappropriate to penalize litigants for delays during this period. Furthermore, the court determined that the dispute had the closest connection to the Nyeri region, where the Claimant worked and resided, and thus ordered the transfer of the claim to the Employment and Labour Relations Court at Nyeri. The Respondents' application for dismissal was declined, and no order as to costs was...
Court Disposition
application declined; claim transferred
Orders
- Respondents’ application dated 3rd March 2020 is declined, with no order on the costs.
- The claim is hereby transferred to the Employment and Labour Relations Court at Nyeri.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
CAUSE NUMBER 437 OF 2018
BETWEEN
ANTHONY NJUGUNA...............................................CLAIMANT
VERSUS
1. AFRI-CHINA INTERNATIONAL CO. LTD
2. ZHENG MIAOGUO..........................................RESPONDENT
RULING
1. In their application dated 3rd March 2020, the Respondents seek an order that the Claim filed herein, is dismissed for want of prosecution. The Respondents state that the Claimant has not taken active steps to prosecute the Claim since the matter was certified ripe for hearing, on 28th January 2019. The Respondents rely on the Affidavit of the 2nd Respondent, sworn on 3rd March 2020.
2. The Claimant opposes the Application, relying on the Grounds of Opposition filed on 29th June 2020, and the Affidavit of his Counsel Kimwere Josphat, sworn on 17th June 2020. He states that the record does not reflect he has failed to prosecute. The Application is frivolous and in abuse of the court process. It is the Respondents who have been frustrating prosecution of the Claim. The Counsel for the Claimant outlines steps taken in prosecution of the Claim, and explains further, that his Client was charged in a criminal case and convicted of forging some employment documents, which are part of his bundle of documents in the Claim.
The Court Finds: -
3. The Claim was filed on 28th March 2018.
4. The Claimant has shown, and the record supports him, that he has actively sought to prosecute the Claim. In very year from 2018, through 2020, the active steps were taken to prosecute. The Court notes that Parties were simultaneously engaged in a criminal case, which has culminated in conviction of the Claimant for forgery of employment documents.
5. The Court takes judicial notice that the year 2020 has been defined by a pandemic, the novel coronavirus. It has been the year of lockdowns and physical disengagement. Public Institutions and Private Businesses have largely scaled down their activities. Judicial service has been limited. Although this has not been raised by the Parties, the Court thinks it is a relevant consideration. The Court should be slow in finding litigants to have failed to prosecute their matters, while the Court itself is not rendering judicial service at normal capacity.
6. Lastly, it is noted that the Claimant was employed by the Respondents, according to his Pleadings, as a Manager. He performed this role at Embu, Meru, Nyeri and Murang’a [ commonly part of the counties known as Mt. Kenya Region]. The Claimant is a resident of Sabasaba, Murang’a County. He should not be litigating at Nairobi. The dispute bears closest connecting factors with the E&LRC Nyeri.
IT IS ORDERED: -
a. Respondents’ Application dated 3rd March 2020 is declined, with no order on the costs.
b. The Claim is hereby transferred to the E&LRC at Nyeri.
Dated and delivered at Nairobi, this 18th day of February, 2021
James Rika
JUDGE