[2022] KEELRC 1159 (KLR)

Defence Forces Canteen Organisation v Ndirangu (Cause 1820 of 2017) [2022] KEELRC 1159 (KLR) (27 May 2022) (Ruling)

Neutral citation: [2022] KEELRC 1159 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1820 of 2017

S.C.Rutto, J

May 27, 2022

Between

Defence Forces Canteen Organisation

Applicant

and

Michael Kamotho Ndirangu

Respondent

Ruling

1. The instant Application which is dated September 25, 2020is expressed to be brought under Article 50(1), 159(2) (b) of the Constitution of Kenya, 2010, Order 17 rule 2(3) of the Civil Procedure Rulesand sections 1A,3A and 63(e) of the Civil Procedure Act, Rule 16 and 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and any other enabling provision of the law.

2. The Application is supported by the grounds on its face and on the Affidavit of Mr. E O Orenga, who identifies himself as a state counsel on record in the matter.

3. The Application seeks the following orders;a.Spentb.That this Honourable Court be pleased to find the delay in prosecuting the claim inexcusable and one that defeats equity.c.That consequently this Honourable Court be pleased to strike out and/or dismiss in its entirety the claim herein.d.That costs of this Application be provided for.

4. The Application is premised on the fact that over 12 (twelve) months had lapsed since the matter was last in Court. Further, that the indolence in prosecuting the claim defeats equity and that the delay was inexcusable.

5. The Application was opposed through the Replying Affidavit sworn on December 10, 2021by Ms. Beatrice J. Sawe, Advocate practicing in the firm, which is on record for the Claimant. It was Counsel’s averment that the Application was premature, misconceived, mischievous and an abuse of the court process hence she urged the Court to dismiss the same with costs.

6. Ms. Sawe further stated that sometimes between 2018 and February, 2019, the court file got misplaced at the registry, hence the Claimant could not have the file listed for mention as intended. That during that period and in the months that followed, the Claimant through his advocates on record, employed all means possible to try and locate the file at the registry, but the said efforts were fruitless as the file could not be traced. That as such, for the better part of the year 2019 and early, 2020, the Claimant continued to try and trace the file at the registry but the same could not be located.

7. To this end, she annexed letters addressed to the Deputy Registrar and screengrabs of emails to the court registry. She further attributed the delay in tracing the court file to the Covid 19 pandemic. Counsel therefore averred that the delay in prosecuting the matter was not of the Claimant’s making but was brought about by factors beyond his control. That the file having been located and placed before Court, the Claimant is intent on prosecuting the matter to its logical conclusion.

Submissions 8. When the Application came up on December 14, 2021, the parties agreed to dispose off the same by way of written submissions. On its part, the Applicant submitted that the Claimant having failed to take any step to ensure the expeditious hearing of the suit for over one (1) year, is guilty of laches hence the said inaction renders the suit ripe for dismissal by dint of Order 17 rule 2(1) as applied under rule 2(3) of the Civil Procedure Rules. To support its submissions, the Applicant relied on several authorities including Allan v Sir Alfred Mc Alphine and Sons Ltd(1968) 1 All ER 543,Cecilia Wanjiku Njoroge v National Environment Management Authority (NEMA) & another,(2013) eKLR and Mukhisa Biscuit Company Limited vs West End Distributors (1969) EA 699.

9. On the other hand, the Claimant reiterated the averments of the Replying Affidavit sworn by Ms. Beatrice Sawe and maintained that the delay in prosecuting the suit was occasioned by factors beyond his control. The authorities of Argan Wekesa Okumu vs Dima College Limited & 2 others(2015) eKLR, Ceven Limited v Erastus Gichuhi & 4 others (2021) eKLR and Ivita vs Kyumbu(1975) eKLR were cited in support of the Claimant’s position.

Analysis and determination 10. Flowing from the Application, the response and the applicable law, it is clear that the main issue falling for the Court’s determination is whether the suit herein is liable for dismissal for want of prosecution. The applicable legal provision in this instance is Rule 16(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 which provides as follows;“(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.”

11. The above provision is a replica of Order 17 Rule 2 of the Civil Procedure Rules.

12. The upshot of Rule 16(1) of this Court’s Rules and Order 17 Rule (2) of the Civil Procedure Rules, is that a suit that has been inactive or idle for a period of more than one year, is liable for dismissal for want of prosecution. Nonetheless, this scenario is not in black and white hence, a case that has been idle for more than one year does not automatically fall for dismissal. In this regard, several

13. Considerations must be taken into account, key among them, the relevant circumstances.

14. Prior to the filing of the instant Application, it is discernible from the record, that the matter came up for mention on 14th November, 2018, when the Court directed the parties to file a list of agreed issues and subsequently take a hearing date at the registry. In this regard, the parties complied and filed a statement of agreed issues on 4th December, 2018.

15. From the record, there seems to have been no activity on the court file shortly after the filling of the agreed issues. The Claimant states that the court file had gone missing for some period of time between 2018 and February, 2019. This is not apparent from the Court record. Nonetheless, this issue was not disputed by the Applicant. Further, the Claimant has adduced evidence to prove that it attempted to have the matter set down for hearing in the years 2019, 2020 and 2021.

16. There is a letter on record, dated 11th April, 2019, through which the Claimant’s Advocate invited the Applicant to fix a pretrial date at the registry on 16th April, 2019. On the said letter, is a remark made on 23rd April, 2019, ostensibly from the Court registry as follows: “To await opening of the diary. Pretrial directions taken on 14/11/2018. ”

17. The Claimant further produced a letter dated 20th August, 2019, addressed to the Deputy Registrar, seeking directions on the matter. This was followed by another email of 19th June, 2020 to the Court, still seeking directions on the matter.

18. There is also a copy of an email of 23rd June, 2020 and 13th September, 2021, through which the Claimant’s Advocate requested the Court for a mention date for purposes of taking directions on the matter. In response to the email of 13th September, 2021, the Claimant’s advocate was advised that the Court was listing 2017 matters in a chronological order hence was advised to await a mention before the Deputy Registrar who was to issue a hearing date. Thereafter the matter was listed for mention on 23rd November, 2021, when the instant Application was brought to the Court’s attention.

19. Subsequently, and in view of the communication emanating from the Claimant’s Advocate to the Court registry, it would seem that the Claimant made several attempts to have the matter mentioned. It is therefore evident that he tried to move the Court in one way or another through his Advocates, with a view to having the matter prosecuted.

20. It is therefore apparent that the delay in prosecution of the matter is not entirely attributable to the Claimant and cannot be termed as inordinate and inexcusable on his part.

21. The Court further takes judicial notice of the Covid 19 pandemic which largely interfered with normal court operations for the better part of 2020 and sometimes in 2021. Accordingly, the Claimant’s explanation as regards the delay in prosecuting the matter, is rational.

22. The Court also takes cognizance that dismissal of a suit is a draconian act as it drives a litigant away from the seat of justice and as such, discretion ought to be exercised judiciously. This position could not have been put better as was in the case of John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation)[2015] eKLR where the court held that: -“Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary.”

23. Against this background, I will not allow the Application as prayed and instead, I will direct that the matter be listed for hearing on a priority basis noting that it is a 2017 matter.

24. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF MAY, 2022. ………………………………STELLA RUTTOJUDGEAppearance:For the Applicant/Respondent Mr. TuitoekFor the Respondent/Claimant Mr. MuchaiCourt Assistant Barille SoraORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE