[2022] KEELRC 843 (KLR)
The court found that although the Claimant did not demonstrate that the Notice to Show Cause was not served in good time and did not show reasonable cause for failing to prosecute the suit after mediation collapsed, the orders sought were discretionary. The court exercised its discretion in favour of the Claimant,...
Source-derived case information.
- Citation
- [2022] KEELRC 843 (KLR)
- Parties
- Applicant: Caroline Akinyi Okoth; Respondent: Darad Shopping Centre Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 278 of 2015
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Notice of Motion allowed; dismissal order set aside; suit and counter-claim to be prosecuted within six months.
- Judges
- AK Nzei
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Court Discretion, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Caroline Akinyi Okoth
Applicant
Darad Shopping Centre Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated.
- 2 Whether the Claimant demonstrated reasonable cause for failure to prosecute the suit after collapse of mediation.
- 3 Whether service of the Notice to Show Cause was effected in good time.
Ratio Decidendi
The court found that although the Claimant did not demonstrate that the Notice to Show Cause was not served in good time and did not show reasonable cause for failing to prosecute the suit after mediation collapsed, the orders sought were discretionary. The court exercised its discretion in favour of the Claimant, recalling and setting aside the dismissal order. The court directed that both the Claimant's claim and the Respondent's counter-claim be prosecuted within six months, failing which both would stand dismissed. The court emphasized the need for expeditious prosecution of the matter and fixed a mention date for purposes of setting a hearing date.
Court Disposition
Notice of Motion allowed; dismissal order set aside; suit and counter-claim to be prosecuted within six months.
Orders
- The dismissal Order dated 27th July 2021 is hereby recalled and set aside.
- The Claimant’s claim and the Respondent’s Counter-Claim shall be prosecuted within six months of this Ruling, failing which both shall stand dismissed.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 278 OF 2015
CAROLINE AKINYI OKOTH......................................................CLAIMANT
VERSUS
DARAD SHOPPING CENTRE LTD......................................RESPONDENT
R U L I N G
1. The suit herein was filed on 30th April 2015, vide a Statement of Claim dated 29th April 2015. The Respondent filed a Counter-Claim on 22nd June 2015. A Notice to Show Cause why the suit could not be dismissed for want of prosecution was issued by the Court’s Deputy Registrar on 14th July 2021. The Notice was issued pursuant to Rule 16 of the Employment and Labour Relations Court (Procedure Rules) 2016, calling upon the parties to attend Court on 27th November 2021 and to show cause why the suit could not be dismissed for want of prosecution.
2. The said notice was issued over three (3) years from 8th June 2018, the date on which the matter was last in Court, and at least over two (2) years from the filing, on 16th August 2019, of a Mediator’s Report communicating the collapse of mediation efforts on the matter. The Claimant/Applicant did not make any effort to fix the suit for hearing.
3. The Claimant did not attend Court on 27th July 2021, and there being no cause shown as to why the suit could not be dismissed for want of prosecution, the suit was dismissed for want of prosecution. The dismissal order did not, however, mention the Respondent’s Counter-Claim, which is a counter-suit.
4. On 17th August 2021, the Claimant filed the Notice of Motion dated 10th August 2021 seeking, inter alia, the setting aside of the dismissal order dated 27th July 2021 and reinstatement of the Claimant’s suit.
5. The application is based on the Supporting Affidavit of Daniel Ngonze Advocate sworn on 10th August 2021. The deponent, while admitting service of the Notice to show Cause by EMS Postal Services, states that the said notice did not reach his office until 2nd August 2021. He has exhibited a copy of an envelope bearing his law firm’s date stamp for 2nd August 2021. Curiously, no EMS delivery note, duly endorsed by the deponent’s law firm, has been exhibited to confirm receipt of the Notice to Show Cause on the said date.
6. The application is opposed by the Respondent, whose counsel swore and filed a Replying Affidavit on 21st September 2021, sworn by PAULINE AWINO OSINO Advocate on 16th September 2021.
7. Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, provides:-
(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) If reasonable cause is given to the satisfaction of the Court, it may make such orders as it thinks fit to obtain expeditious hearing and determination of the suit.
(3) Any party to the suit may apply for dismissal as provided in paragraph (1).
(4) The Court may dismiss the suit for non-compliance with any direction given under this rule.”
8. Both parties filed written submissions on the application pursuant to the Court’s directions in that regard; which I have considered.
9. Orders sought by the Claimant/Applicant are purely discretionary, and although counsel for the Claimant has not demonstrated that the Notice to Show Cause was not served in good time, and has not shown reasonable cause why the suit was not set down for hearing after the mediator filed in Court a report signaling the collapse of mediation efforts, I am inclined to exercise the Court’s discretion in favour of the Claimant.
10. Consequently, the Notice of Motion dated 10th August 2021 is allowed in the following terms:-
a) The dismissal Order dated 27th July 2021 is hereby recalled, and is set aside.
b) The Claimant’s claim and the Respondent’s Counter-Claim herein shall be prosecuted within six (6) months of this Ruling, failing which both shall stand dismissed.
c) The suit shall be mentioned in Court on 15/2/2022 for purposes of fixing a hearing date.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 3RD DAY OF FEBRUARY 2022
AGNES KITIKU 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 KITIKU NZEI
JUDGE
Appearance:
Mr. Ngonze for Claimant
No Appearance for Respondent