[2021] KEELRC 1579 (KLR)
The court found that the failure to obtain a hearing date was primarily due to the registry's policy of not allocating dates for 2017 matters until earlier backlogs were cleared, a situation exacerbated by the COVID-19 pandemic. The claimant's inability to secure a date was not entirely their fault. The court held...
Source-derived case information.
- Citation
- [2021] KEELRC 1579 (KLR)
- Parties
- Claimant: Hilder Anyika Isuruti; Applicant: Poonam Chaudhary
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 6 of 2017
- Procedural Posture
- Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Court Backlog, Covid 19 Impact on Proceedings, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hilder Anyika Isuruti
Claimant
Poonam Chaudhary
Applicant
Procedural Posture
Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the claimant's failure to take steps since December 2018.
- 2 Whether the delay in prosecuting the suit is attributable to the claimant or to systemic court backlog and COVID-19 disruptions.
Ratio Decidendi
The court found that the failure to obtain a hearing date was primarily due to the registry's policy of not allocating dates for 2017 matters until earlier backlogs were cleared, a situation exacerbated by the COVID-19 pandemic. The claimant's inability to secure a date was not entirely their fault. The court held that the applicant had not demonstrated that the delay was inordinate or solely attributable to the claimant. Consequently, the application to dismiss the suit for want of prosecution lacked merit and was dismissed. The court further directed that the suit be given a hearing date on a priority basis.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed with costs in the cause.
- The suit to be granted a hearing date at the registry on a priority basis.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 6 OF 2017
HILDER ANYIKA ISURUTI............................................CLAIMANT/RESPONDENT
VERSUS
POONAM CHAUDHARY.................................................APPLICANT/RESPONDENT
RULING
1. The application dated 12th August, 2020 by the Respondent/Applicant seeks to have the suit dismissed for want of prosecution in that the claimant has failed to take any steps towards prosecution of the claim since 4th December, 2018 when the ruling of the Respondent’s application dated 31st May, 2018 seeking orders that the claim be dismissed for want of prosecution was delivered. The application is supported by an Affidavit of Paul Amuga, an advocate representing the applicant who states that on 4th December, 2018, the Court delivered a ruling directing the parties to take a hearing date at the registry according to the Court’s diary.
2. That the claimant has since failed to take any steps to prosecute the claim since the delivery of the said ruling on 4/12/2018 todate. That the suit be dismissed with costs.
3. The claimant/respondent filed a replying affidavit sworn to by Hilder Anyika Isuruti, dated 24/9/2020 in which the claimant acknowledge that this is the 2nd application by the respondent to dismiss the suit for want of prosecution .
4. The respondent admits having failed to obtain a date to prosecute the suit despite efforts to do so and shares the respondent’s frustration to get a hearing date to have the suit concluded.
5. That the registry has informed the respondent’s representative time without number that matters filed in 2017 would not be given hearing dates until the backlog of cases filed earlier are cleared.
6. That the situation has been exacerbated by the COVID-19 pandemic since 17th March, 2020.
7. That it is not the respondent’s fault that a date to determine the matter has not been obtained.
Determination
8. The Court is satisfied that failure to obtain a hearing date to determine the matter is as a result mainly by the Court registry in declining to grant matters filed in 2017 hearing dates due to the backlog of cases that pertains at Nairobi Employment and Labour Relations Court. This situation has been exacerbated by the COVID -19 pandemic.
9. The respondent has equally failed to demonstrate any effort on its part to secure a hearing date for this matter.
10. The application clearly lacks merits and is dismissed with costs in the cause.
11. The suit to be granted a hearing date at the registry on priority basis.
DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JUNE, 2021.
MATHEWS N. NDUMA
JUDGE
ORDER
In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. 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 has 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 18 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.
MATHEWS N. NDUMA
JUDGE
Appearances:-
Amuga & Co. Advocates for the Respondent/Applicant
Litoro for Omwebu Advocates
Ekale – Court clerk