[2022] KEELRC 649 (KLR)
The court found that the claimant failed to show reasonable cause for the delay in prosecuting the suit between September 2020 and November 2021. The explanation that the claimant expected the Deputy Registrar to issue notices was deemed invalid and insufficient. However, the court exercised its discretion in favour...
Source-derived case information.
- Citation
- [2022] KEELRC 649 (KLR)
- Parties
- Claimant: John Njoroge Wanjiku; Respondent: Aldonai Enterprises Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 26 of 2020
- Procedural Posture
- Employment Cause / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Conditional extension granted; suit not dismissed but subject to strict timeline.
- Judges
- AK Nzei
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njoroge Wanjiku
Claimant
Aldonai Enterprises Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
- 2 Whether the claimant has shown reasonable cause for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the claimant failed to show reasonable cause for the delay in prosecuting the suit between September 2020 and November 2021. The explanation that the claimant expected the Deputy Registrar to issue notices was deemed invalid and insufficient. However, the court exercised its discretion in favour of the claimant, granting a final opportunity to prosecute the suit within six months from the date of the ruling, failing which the suit would stand dismissed. The court emphasized the importance of prosecuting cases diligently to avoid contributing to judicial backlog, but balanced this with the interests of justice by allowing the claimant a limited extension.
Court Disposition
Conditional extension granted; suit not dismissed but subject to strict timeline.
Orders
- The claimant shall prosecute the suit within six months from the date of this ruling, failing which the suit shall stand dismissed.
- The suit will be mentioned in court on 31/3/2022 for pre-trial directions.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 26 OF 2020
JOHN NJOROGE WANJIKU..........................................................................CLAIMANT
VERSUS
ALDONAI ENTERPRISES LTD.................................................................RESPONDENT
R U L I N G
1. The claim herein was instituted by the Claimant vide a Memorandum of Claim dated 10th June 2020 and filed in Court on 12th June 2020. There is no appearance on record by the Respondent or a Response to the Claim despite being there on record an Affidavit of Service filed on 11th August 2020 stating that Summons and Suit documents herein were served on the Respondent on 24th July 2020.
2. The Court’s record herein shows that the suit came up for mention on 24th September 2020 when the same was taken out on grounds that the trial Judge was on transfer. The Court directed that parties move the Court once the incoming Judge was available.
3. Record further shows that on 24th September 2020, a representative of the Claimant’s Advocates attended the Court’s Registry and fixed the matter for mention on 9th November 2020. There appears to have been no proceedings taken on 9th November 2020.
4. The Claimant did not take any further action on the suit until he was woken up by a Notice to Show Cause issued by the Court’s Deputy Registry on 17th November 2021. The Notice to Show Cause was issued under Rule 16 of the employment and Labour Relations Court (Procedure) Rules 2016, and it called upon parties to the suit to attend Court on 1st December 2021 and show cause why the suit could not be dismissed for want of prosecution.
5. Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016 provides:-
(1) “In any suit where 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 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.
(2) If reasonable cause is given to the satisfaction of the Court, it may make such orders as it thinks fit to obtain the expeditions hearing and determination of the suit.
(3) Any party to the suit may apply for dismissal as provided in paragraph (i).
(4) The court may dismiss the suit for non-compliance with any direction given under this Rule.”
6. Counsel for the Claimant attended Court on 1st December 2021 and was directed to file an affidavit within twenty one (21) days, showing cause why the suit could not be dismissed for want of prosecution. The affidavit, sworn by CLIFFORD O. TOLO ADVOCATE, was filed in Court on 14th December 2021.
7. The Claimant and/or his Counsel has not shown cause, to the Court’s satisfaction, why no action was taken towards prosecuting the suit during the period between 24th September 2020 when the matter was supposed to come up in Court and 17th November 2021 when the notice to show cause was issued. The allegation that the Claimant expected the Court’s Deputy Registrar to issue notices upon allocation of the matter to a new Judge is not valid, and does not amount to a reasonable cause.
8. I have said before, and will repeat it here, that once a suit has been filed, it must be prosecuted in accordance with the law and procedure. If a suit is not prosecuted, the Court will not allow it to lie in its Registry and become part of daily statistics of case backlog in the Judiciary.
9. I am, however, inclined to exercise the Court’s discretion in favour of the Claimant, and do proceed to make the following orders:-
a) the Claimant shall prosecute the suit herein within six months from the date of this Ruling, failing which the suit shall stand dismissed.
b) the suit will be mentioned in Court on 31/3/2022 for pre-trial directions.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 24TH DAY FEBRUARY 2022
AGNES KITIKU NZEI
JUDGE
ORDER
In view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.
AGNES KITIKU NZEI
JUDGE
Appearance:
Mr. Iddi for Claimant
No Appearance for Respondent