[2018] KEELRC 779 (KLR)
The court found that although the claimant had not prosecuted the case since filing in 2016, the delay was not entirely attributable to the claimant, as the court registry had a backlog that prevented cases from being fixed for hearing. The respondent failed to demonstrate that the delay was inordinate or...
Source-derived case information.
- Citation
- [2018] KEELRC 779 (KLR)
- Parties
- Applicant: David Eris; Respondent: Baloon Safaris Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1319 of 2016
- Procedural Posture
- Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Discretion, Delay in Prosecution, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Eris
Applicant
Baloon Safaris Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to alleged inaction by the claimant.
- 2 Whether the delay in prosecuting the case is inordinate and inexcusable.
- 3 Whether the respondent will suffer prejudice if the case proceeds to trial.
Ratio Decidendi
The court found that although the claimant had not prosecuted the case since filing in 2016, the delay was not entirely attributable to the claimant, as the court registry had a backlog that prevented cases from being fixed for hearing. The respondent failed to demonstrate that the delay was inordinate or inexcusable, or that they would suffer prejudice if the case proceeded. The court exercised its discretion against dismissal, emphasizing the importance of hearing cases on their merits and the lack of evidence that a fair trial could not be achieved. The application for dismissal was therefore dismissed, and the court directed that the matter be set down for hearing on a priority basis.
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- The Deputy Registrar is directed to give the parties a chance to set down the case for hearing on a priority basis.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1319 OF 2016
(Before Hon. Lady Justice Hellen S. Wasilwa on 19th October, 2018)
DAVID ERIS.................................................................................CLAIMANT
VERSUS
BALOON SAFARIS LIMITED.............................................RESPONDENT
RULING
1. The application before me is the Respondent/Applicant’s application dated 2nd May 2018 seeking dismissal of this case for want of prosecution stating that the Claimants have not taken any steps to have this case prosecuted since it was filed in 2016.
2. The Claimant has filed a Replying Affidavit and Grounds of Opposition in response to the application and highlighted that:-
a) The case has been active in that as recent as 27th March 2017 the Claimant had fixed the case for mention for pre-trial. Thereafter on the 20th March 2018, the Claimant’s Counsel invited the respondent’s advocates to fix a date for the case as shown in the letter dated 15th January 2018 which is annexed to the replying affidavit.
b) The court can take judicial notice of the fact that it had been giving priority to the older cases and it was not possible to have a hearing date for this case earlier.
c) It is in the interests of justice demand that the case is heard and determined on its merits because the Claimant in this matter has got a reasonable cause of action.
3. The Claimants also submitted that the Respondent has not shown that there has been inordinate and inexcusable delay in the circumstances of this case. They further submitted that the Respondent has not satisfied the Court that he will be prejudiced by the delay if the suit were to be allowed to proceed to trial. Further on, he has not satisfied the Court that a fair trial cannot be achieved.
4. I agree that the Claimants have not prosecuted this case since it was filed in 2016. However, I take judicial notice of the fact the registry has not been able to allow some cases to be fixed for hearing given the heavy backlog that this Court has been facing. The Claimant cannot therefore be wholly to blame for their inaction in prosecuting this case. The Claimants have also submitted that they are willing to prosecute this case.
5. I exercise my discretion and dismiss this application. I will however direct that the Deputy Registrar (DR) gives the Parties herein a chance to set down this case for hearing on a priority basis.
6. Costs in the cause.
Dated and delivered in open Court this 19th day of October, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Bichanga holding brief for Dr. Ekuru for Claimant
Kimashua holding brief for Midwa for Respondent