[2021] KEELRC 510 (KLR)
The court found that the claimant failed to provide any reasonable or valid cause for the delay in prosecuting the suit for over two and a half years. In accordance with Rule 16(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, the court determined that the requirements for dismissal for want...
Source-derived case information.
- Citation
- [2021] KEELRC 510 (KLR)
- Parties
- Claimant: Boniface Ongari Osuso; Respondent: Neptune Hotels Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 511 of 2016
- Procedural Posture
- Employment Cause / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- AK Nzei
- Legal Topics
- Dismissal for Want of Prosecution, Court Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Ongari Osuso
Claimant
Neptune Hotels Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the claimant has shown reasonable cause for failing to prosecute the suit for over two and a half years.
- 2 Whether the suit should be dismissed for want of prosecution under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
Ratio Decidendi
The court found that the claimant failed to provide any reasonable or valid cause for the delay in prosecuting the suit for over two and a half years. In accordance with Rule 16(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, the court determined that the requirements for dismissal for want of prosecution were met. The court exercised its discretion to dismiss the suit, as the claimant did not demonstrate any effort or intention to move the matter forward within the prescribed period, and no exceptional circumstances were presented to justify the delay.
Court Disposition
suit dismissed for want of prosecution
Orders
- The claimant's suit is dismissed for want of prosecution.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 511 OF 2016
BONIFACE ONGARI OSUSO.........................................................................CLAIMANT
VERSUS
NEPTUNE HOTELS LIMITED ................................................................RESPONDENT
R U L I N G
1. The claim herein was instituted on 22/6/2016 vide a Memorandum of Claim dated 20/6/2016. The Respondent’s Response to Claim was filed on 16/12/2016.
2. The Court’s record shows that hearing of the suit was on 16/7/2018 adjourned at the instance of the Claimant, and that the Claimant was ordered to pay the Respondent’s costs agreed at ksh.5,000. The matter was then fixed for mention on 18/12/2018, a date on which no proceedings are shown to have been taken.
3. Thereafter, and for a period exceeding two and a half years, the Claimant did not take any step to prosecute his suit.
4. On 23/6/2021, the Court issued a written notice under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016, calling upon the parties herein to attend Court on 14/7/2021 and show cause why the suit could not be dismissed for want of prosecution. On 14/7/2021, parties were directed by the Court to file responses to the Notice to Show Cause.
5. On 27/7/2021, the Claimant filed a Replying Affidavit in response to the Notice to Show Cause. The Claimant has not given any valid reason as to why he did not, for over two and a half years, prosecute or even make an attempt to prosecute his suit. He has not shown any reasonable cause why the suit should not be dismissed for want of prosecution. Rule 16(1) of the Employment and Labour Relations Court (Procedure) Rules 2016 provide:-
“in any suit where 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.”
6. It is my finding that no reasonable cause has been shown. Consequently, and as rightly urged by the Respondent in the Replying Affidavit of Joseph Karanja Kanyi sworn on 4/8/2021 and filed in Court on 5/8/2021, I hereby dismiss the Claimant’s suit for want of prosecution. No orders as to costs.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF NOVEMBER 2021
AGNES M.K. NZEI
JUDGE
ORDER
In view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.
AGNES M.K. NZEI
JUDGE
Appearance:
Mr. Mkomba for Claimant
No appearance for Respondent