[2020] KEELRC 188 (KLR)
The court found that the claimant's explanations for the delay in prosecuting the case were neither convincing nor sufficient. The claimant was aware of the need to prosecute the case and the reasons advanced, including waiting for a witness and the COVID-19 pandemic, did not justify the prolonged inaction. However,...
Source-derived case information.
- Citation
- [2020] KEELRC 188 (KLR)
- Parties
- Claimant: Joseph Kimeu Nzau; Respondent: Hall Equatorial Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1079 of 2016
- Procedural Posture
- Employment Cause / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- Claimant granted final opportunity to prosecute subject to strict conditions; failure to comply results in dismissal.
- Judges
- MSA Makhandia
- Legal Topics
- Dismissal for Want of Prosecution, Unfair Termination Claims, Procedural Delay, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kimeu Nzau
Claimant
Hall Equatorial Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the claimant's suit should be dismissed for want of prosecution.
- 2 Whether the claimant provided sufficient explanation for the delay in prosecuting the case.
- 3 Whether the respondent is entitled to costs for the motion.
Ratio Decidendi
The court found that the claimant's explanations for the delay in prosecuting the case were neither convincing nor sufficient. The claimant was aware of the need to prosecute the case and the reasons advanced, including waiting for a witness and the COVID-19 pandemic, did not justify the prolonged inaction. However, the court exercised its discretion to grant the claimant a final opportunity to prosecute the cause, subject to filing any further witness statements and paying the respondent's wasted costs within 15 days. Failure to comply with these conditions would result in automatic dismissal of the cause without further court order.
Court Disposition
Claimant granted final opportunity to prosecute subject to strict conditions; failure to comply results in dismissal.
Orders
- Any further witness statements to be filed and served within 15 days.
- Claimant to pay respondent's wasted costs of Kshs 7,500 within 15 days.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1079 OF 2016
JOSEPH KIMEU NZAU.....................................CLAIMANT
v
HALL EQUATORIAL LIMITED.................RESPONDENT
RULING
1. Joseph Kimeu Nzau (Claimant) instituted these legal proceedings against Hall Equatorial Ltd (Respondent) on 6 June 2016 and the Issues in Dispute were stated as
(i) Non-payment of one month salary in lieu of notice.
(ii) Non-payment of overtime.
(iii) Non-payment of service charge.
(iv) Compensation for unfair dismissal.
(v) Non-payment of 11 days salary.
(vi) Compensation for 82 days not taken.
(vii) Payment of House allowance.
2. Pursuant to leave granted on 20 February 2018, the Claimant filed an Amended Memorandum of Claim on 21 February 2018. The Respondent filed a Memorandum of Defence on 25 April 2018.
3. The Claimant took no steps to prosecute the Cause and on 13 March 2020, the Respondent filed a Motion seeking orders
1. THAT this Honourable Court be pleased to dismiss the Claimant’s suit for want of prosecution.
2. THAT the costs of the suit and this application be borne by the Claimant.
4. The Claimant filed an affidavit sworn on 19 August 2020 in opposition to the application. This prompted the Respondent to file a further affidavit on 24 September 2020.
5. On 29 September 2020, the Court directed the parties to file and exchange submissions.
6. The Respondent filed its submissions on 8 October 2020 while the Claimant filed his submissions on 19 October 2020.
7. In seeking the dismissal of the Cause, the Respondent contended that the Claimant had not taken any steps to prosecute the Cause since it was last in Court on 20 February 2018.
8. The delayed hearing of the Cause, the Respondent urged, had made it impossible to have a fair hearing and/or prejudiced a fair hearing due to unavailability of witnesses and fading memories
9. Opposing the application, it was asserted by the advocate on record for the Claimant that the failure to prosecute was because she had been waiting for instructions from the Claimant on the Response before fixing the Cause for hearing; she was waiting for an independent witness and the declaration of COVID19 public health pandemic.
10. The Court has considered the Motion, affidavits and submissions.
11. The explanations for inaction on the part of the Claimant do not appear convincing or sufficient. The Claimant always knew the case to prosecute and how to prosecute it and it is inexplicable that it would take him over a year to get a corroborative witness, if at all.
12. It is equally unconvincing that the Claimant required over a year to provide further instructions to his advocate on record on the Respondent’s Defence.
13. The COVID19 public pandemic declaration is also a mere excuse. The declaration was made in March 2020.
14. It is correct as submitted by the Respondent that it is the instant Motion which woke up the Claimant from his slumber.
15. However, the Court will allow the Claimant the last opportunity to prosecute the Cause on the following terms
(a) Any further witness statements to be filed and served within the next 15 days.
(b) The Claimant pays the Respondent’s wasted costs of the Motion assessed as Kshs 7,500/- within 15 days.
(c) In default of compliance with all or any of the above terms, the Cause will stand dismissed without any further Court order.
16. Costs in the cause.
Delivered through Microsoft teams, dated and signed in Kisumu on this 18th day of November 2020.
Radido Stephen
Judge
Appearances
For Claimant S.M. Kitonga & Co. Advocates
For Respondent Titus Makhanu & Associates Advocates
Court Assistant Judy Maina