[2020] KEHC 2262 (KLR)
The court found that although the application to set aside the dismissal order was filed late, the plaintiff provided plausible reasons for the delay, including exile, illness, and related litigation. The court held that the discretion to set aside a dismissal order must be exercised judiciously, considering the...
Source-derived case information.
- Citation
- [2020] KEHC 2262 (KLR)
- Parties
- Applicant: James M. Njiri; Respondent: National Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 25 of 1998
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal and Transfer Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated and transferred to Employment and Labour Relations Court; costs to defendant.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Transfer of Suit, Jurisdiction of Elrc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James M. Njiri
Applicant
National Bank of Kenya Limited
Respondent
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal and Transfer Suit
Legal Issues
- 1 Whether the dismissal order of 5th July, 2004 should be set aside for want of prosecution.
- 2 Whether the suit should be transferred to the Employment and Labour Relations Court for hearing and determination.
- 3 Whether the delay in prosecuting the suit was justified.
Ratio Decidendi
The court found that although the application to set aside the dismissal order was filed late, the plaintiff provided plausible reasons for the delay, including exile, illness, and related litigation. The court held that the discretion to set aside a dismissal order must be exercised judiciously, considering the nature of the claim and the interests of both parties. The court further determined that, due to the nature of the dispute as reflected in the pleadings, jurisdiction now lies with the Employment and Labour Relations Court. Consequently, the dismissal order was set aside, the suit reinstated, and the matter transferred to the Employment and Labour Relations Court for hearing and...
Court Disposition
Application allowed; dismissal order set aside; suit reinstated and transferred to Employment and Labour Relations Court; costs to defendant.
Orders
- The dismissal order of 5th July, 2004 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CO URT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 25 OF 1998
JAMES M. NJIRI.......................................................PLAINTIFF/APPLICANT
VERSUS
NATIONAL BANK OFKENYA LIMITED.....DEFENDANT/RESPONDENT
RULING
This is one of the oldest cases pending determination in our courts. The plaintiff’s suit was dismissed on 5th July, 2004. There is now before me an application by way of Notice of Motion dated 6th November, 2019 seeking to set aside the dismissal order, and transfer the matter to Employment and Labour Relations Court for hearing and determination. The application is supported by grounds on the face of the application and the supporting affidavit sworn by the plaintiff on 6th November, 2019.
The application is opposed and there is a replying affidavit sworn by one Samuel Mundia, an advocate of this court and the defendants Head, Commercial Transactions and Litigation department. Both parties have also filed the respective submissions. There is no doubt that this application was filed very late from the date of the said dismissal. There is every reason to expect any litigant who comes to court to ensure expeditious disposal of any matter placed before the courts. The plaintiff has given a chronology of events which impacted on the delay in the prosecution of this suit. These include his exile from the country, indisposition and connected litigation in the Industrial Court.
There is also the issue of whether or not the plaintiff was notified of the intended action to dismiss his claim. Whatever the case anyway, he was expected to pursue his claim against the defendant within a reasonable time.
Courts are faced with a delicate balance in considering the interests of the parties. The order sought is discretionary but such discretion but be considered judiciously. More often than not, costs would be sufficient to correct some delay. Cation however must be exercised to avoid any prejudice that may, befall the defendant. In making a decision whatever way the nature of the claim has to be considered.
I have considered as expected of me, the positions of the parties herein. The plaintiff has persuaded this court that the reasons for delay are plausible and his filing of another claim in the pendance of this suit was an error of judgment. I have looked at Order 12 Rule 8 and Order 17 Rule 2 of the Civil Procedure Rules. The plaintiff’s suit was dismissed for want of prosecution and therefore Order 17 Rule 2 of the Civil Procedure Rules was applicable.
Taking into totality the circumstances of this case, I allow the plaintiff’s application and set aside the dismissal order of 5th July, 2004. The suit is accordingly reinstated for hearing. Following the enactment of the Employment and Labour Relations Court Act, this court is divested of jurisdiction to hear and determine this dispute. This is informed by the pleadings contained in the plaint dated 5th January, 1998 and the prayers thereunder.
This case is therefore transferred to ELRC for hearing and determination. The plaintiff shall however pay the defendant the costs occasioned by this application. Such costs shall be agreed and if not taxed by the taxing officer.
Dated and delivered at Nairobi this 15th day of October, 2020.
A.MBOGHOLI MSAGHA
JUDGE