[2022] KEELRC 554 (KLR)
The Court found that the Petitioners failed to demonstrate sufficient diligence in prosecuting their case, as there was an inordinate delay of about two years in seeking to set aside the dismissal order. The Petitioners attributed the delay to their former advocate's failure to communicate, but the Court held that...
Source-derived case information.
- Citation
- [2022] KEELRC 554 (KLR)
- Parties
- Applicant: Audrey Wafumbwa; Applicant: Benard Kwalia; Applicant: Mike Musungu; Applicant: Valentine Biego; Applicant: David Musundi; Applicant: Abisai Amugune; Respondent: Speaker, County Assembly of Trans Nzoia; Respondent: County Assembly of Trans Nzoia; Respondent: Clerk, County Assembly of Trans Nzoia; Respondent: County Assembly Service Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 31 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Delay in Prosecution, Interdiction, Fixed Term Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Audrey Wafumbwa
Applicant
Benard Kwalia
Applicant
Mike Musungu
Applicant
Valentine Biego
Applicant
David Musundi
Applicant
Abisai Amugune
Applicant
Speaker, County Assembly of Trans Nzoia
Respondent
County Assembly of Trans Nzoia
Respondent
Clerk, County Assembly of Trans Nzoia
Respondent
County Assembly Service Board
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Petitioners have demonstrated sufficient cause to set aside the order dismissing the Petition for want of prosecution.
- 2 Whether the delay in seeking reinstatement was justified and excusable.
- 3 Whether the status of the Petitioners' employment/interdiction affects the utility of reinstating the Petition.
Ratio Decidendi
The Court found that the Petitioners failed to demonstrate sufficient diligence in prosecuting their case, as there was an inordinate delay of about two years in seeking to set aside the dismissal order. The Petitioners attributed the delay to their former advocate's failure to communicate, but the Court held that litigants also have a responsibility to follow up on their cases. Furthermore, the Petitioners did not disclose the current status of their employment or interdiction, and the contracts on record had long expired. In the absence of evidence of ongoing employment or interdiction, reinstating the Petition would serve no practical purpose. The application to set aside the dismissal...
Court Disposition
application dismissed
Orders
- The Motion dated 15 November 2021 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
PETITION NO. 31 OF 2016
AUDREY WAFUMBWA..........................................................................1st PETITIONER
BENARD KWALIA..................................................................................2nd PETITIONER
MIKE MUSUNGU...................................................................................3rd PETITIONER
VALENTINE BIEGO...............................................................................4th PETITIONER
DAVID MUSUNDI.....................................................................................5th PETITIONER
ABISAI AMUGUNE.................................................................................6th PETITIONER
VERSUS
SPEAKER, COUNTY ASSEMBLY OF TRANS NZOIA....................1st RESPONDENT
COUNTY ASSEMBLY OF TTRANS NZIOA.....................................2nd RESPONDENT
CLERK, COUNTY ASSEMBLY OF TRANS NZOIA.......................3rd RESPONDENT
COUNTY ASSEMBKLY SERVICE BOARD......................................4th RESPONDENT
RULING NO. 2
1. The Respondents moved the Court on 4 July 2018, seeking an order dismissing the Petition for want of prosecution. The ground upon which the application was made was that the Petitioners had failed to take action to prosecute the Petition for about 1 year and 4 months.
2. The Motion was fixed for hearing on 18 September 2018.
3. When the application was called out for hearing on 18 September 2018, none of the parties were present and the Court dismissed the Petition
4. On 19 November 2021, the Petitioners filed a Motion seeking the setting aside of the order dismissing the Petition and reinstating it for hearing.
5. The grounds in support of the Motion were that the Petitioners were not aware of the dismissal; the Respondents’ application seeking dismissal of the Petition was not served and that the Petitioners had a strong arguable case raising constitutional questions which had a high chance of success.
6. When the application came up for directions on 29 November 2021, the Petitioners informed the Court that they had served the Respondents through their advocate on record via email (affidavit of service was filed on 26 November 2021).
7. The Respondents were not in attendance.
8. The Court directed the Petitioners to notify the Respondents to file and serve responses (and submissions) within set timelines.
9. The Respondents responses and submissions were not on record by the time of preparation of this Ruling.
10. The Petitioners filed their submissions on 27 January 2022.
11. The Court has considered the Motion, affidavit and submissions.
12. The Petition was dismissed on 18 September 2018. The application to set aside the dismissal order was filed on 19 November 2021, about 2-years after the dismissal.
13. The Petitioners attributed the delay to move the Court timeously to a failure by their erstwhile advocate to communicate to them on the status of the Petition, and further asserted that they only became aware of the dismissal upon instructing the firm of advocate presently on record.
14. While an advocate has a professional obligation to communicate with a client on the progress of a case, a diligent client should also seek to know the progress of a case from the advocate.
15. The Petitioners herein had been interdicted/suspended in 2016. They moved the Court to declare the interdictions unlawful (among other orders) in 2016.
16. The Court declined to issue any interim orders interdicting the interdictions/suspensions. The Petitioners have not disclosed the status of their contractual relationships with the Respondents as of the time of seeking the setting aside orders (whether still on interdiction). The contracts filed in Court show the Petitioners were on fixed-terms contracts which have long lapsed.
17. Without demonstration of diligence to justify the delay, the Court finds there was inordinate delay in moving the Court and further that without a disclosure on the status of the interdictions/employment, the Court may be embarking on an exercise in futility.
18. The Motion dated 15 November 2021 is dismissed with no order on costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 9TH DAY OF MARCH 2022.
RADIDO STEPHEN, MCIARB
JUDGE
APPEARANCES
FOR PETITIONERS KRAIDO & CO. ADVOCATES
FOR RESPONDENTS PROF TOM OJIENDA & ASSOCIATES
COURT ASSISTANT CHRISPO AURA