[2021] KEELRC 1008 (KLR)
The court found that the claimant had made reasonable efforts to progress the suit, including attempts to secure mention and hearing dates, but was unable to do so due to systemic delays and the impact of the COVID-19 pandemic on court operations. The court took judicial notice of the backlog at the Nairobi...
Source-derived case information.
- Citation
- [2021] KEELRC 1008 (KLR)
- Parties
- Respondent: Edward Mbalanya Kafuna; Applicant: Ideal Security Services Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 185 of 2018
- Procedural Posture
- Dismissal Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Judicial Notice, Covid19 Impact on Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Mbalanya Kafuna
Respondent
Ideal Security Services Ltd
Applicant
Procedural Posture
Dismissal Application / Ruling on Application to Dismiss 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 claimant took reasonable steps to prosecute the suit despite registry and court delays.
Ratio Decidendi
The court found that the claimant had made reasonable efforts to progress the suit, including attempts to secure mention and hearing dates, but was unable to do so due to systemic delays and the impact of the COVID-19 pandemic on court operations. The court took judicial notice of the backlog at the Nairobi Employment and Labour Relations Court, which had not been allocating hearing dates for 2018 matters, focusing instead on older cases. The applicant did not challenge the factual assertions in the claimant's replying affidavit. Therefore, the application for dismissal for want of prosecution was without merit, as the claimant was not guilty of indolence or willful neglect.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed for lack of merit.
- The suit to be set down for hearing on the merits on the date of delivery of this ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO. 185 OF 2018
EDWARD MBALANYA KAFUNA............................................CLAIMANT/RESPONDENT
VERSUS
IDEAL SECURITY SERVICES LTD......................................RESPONDENT/APPLICANT
RULING
1. The Respondent/Applicant filed a notice of motion application dated 26th November, 2020 in which the applicant prays that the suit herein be dismissed for want of prosecution as the Claimant/Respondent has made no steps to prosecute the suit.
2. The applicant states in the grounds set out in the Notice of Motion and supporting affidavit that the suit was filed on 5th February, 2018. A statement of defence dated 13th March, 2018 was filed and that the claimant has failed and or neglected to take necessary steps towards final determination of the suit in that no hearing date has been set since, hence the suit be dismissed for want of prosecution.
3. The claimant filed a replying affidavit opposing the application and states he has taken steps to prosecute the matter. That on 21st November, 2018, the suit was fixed for mention and the advocates on record in the year 2019, visited the Court registry on numerous occasions only to be advised by the Court officials that there were no dates available and that the claimant should await the opening of the diary for the issuance of a hearing date.
4. That on 13th March, 2020, the advocates for the claimant wrote to the Deputy Registrar requesting for a mention date. The letter is attached. Again on 9th February, 2021, the advocate wrote an email requesting for a mention date. The email is attached to the replying affidavit.
5. The claimant deposes that he has been advised by his advocates that it has been difficult to access the registry since the COVID – 19 pandemic started in 2020.
6. The applicant did not file a supplementary affidavit to challenge the facts set out in the replying affidavit by the claimant.
7. The Court is satisfied that the claimant made reasonable steps to progress the suit but was unable to get a mention date and a hearing date for the hearing and determination of the suit.
8. In any event, the Court is aware and takes judicial notice that due to the backlog of cases at Nairobi, Employment and Labour Relations Court, the Court has not been allocating hearing dates for matters filed in the year 2018. The Court is still expediting hearing and determination of suits filed between the year 2016 and 2017 to date.
9. The application by the respondent is devoid of merits. It cannot be said as was held in Utalii Transport Company Limited and 3 Others –vs- NIC Bank & Another [2014] eKLR that the claimant is guilty of indolence and willful neglect or failure to take steps to have the suit heard and determined.
10. The application is dismissed for lack of merit and the suit to be set down for hearing on the merits on the date of delivery of this ruling.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 16TH DAY OF SEPTEMBER, 2021.
MATHEWS N. NDUMA
JUDGE
Appearances:
Okongo Omogeni & Co. Advocates for the Applicant
Karanja and Partners Advocates for the Respondent
Ekale – Court clerk