[2021] KEELRC 1142 (KLR)
The court found that although the Respondent was correct in asserting that a case inactive beyond the period specified in the Rules can be dismissed for want of prosecution, the delay in this instance was caused by a Court directive restricting hearing dates to older cases. This directive misled the Claimants and...
Source-derived case information.
- Citation
- [2021] KEELRC 1142 (KLR)
- Parties
- Applicant: Joseph Mutuku Kyalo & 111 Others; Respondent: Devki Steel Mills Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1324 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal declined; suit to proceed to hearing.
- Judges
- AN Makau
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Court Directives, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutuku Kyalo & 111 Others
Applicant
Devki Steel Mills Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity since being certified ready for hearing.
- 2 Whether the delay in prosecuting the suit was attributable to the Claimants or to a directive of the Court.
Ratio Decidendi
The court found that although the Respondent was correct in asserting that a case inactive beyond the period specified in the Rules can be dismissed for want of prosecution, the delay in this instance was caused by a Court directive restricting hearing dates to older cases. This directive misled the Claimants and justified their inaction. As the delay was not attributable to the Claimants but to the Court's own directive, the application for dismissal was declined. The court ordered the matter to proceed to hearing on a specified date without adjournment.
Court Disposition
Application for dismissal declined; suit to proceed to hearing.
Orders
- The application for dismissal for want of prosecution is declined.
- The suit is to proceed for hearing on 5th August 2021 before any of the newly appointed ELRC Judges.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO. 1324 OF 2018
JOSEPH MUTUKU KYALO & 111 OTHERS......................................CLAIMANTS
VERSUS
DEVKI STEEL MILLS LIMITED.......................................................RESPONDENT
RULING
1. The Respondent/Applicant’s notice of motion application dated 27th April 2021 seeks the dismissal of the Claimants’ suit for want of prosecution. It is asserted that the suit was certified ready for hearing on 29th May 2019 and has remained inactive since then. The Respondent asserts that it is beyond peradventure that the Claimants have lost any perceivable interest in prosecuting this suit. The Respondent argues that it is Constitutional tenet underpinned by Article 159(2)(b) as read with Section 3 of the Employment and Labour Relations Court Act, 2011 and Rule 16 of this Honourable Court’s Rules that justice shall be dispensed without delay.
2. The Claimants on their part assert that they have not lost interest in the claim and that they were unable to fix the matter for hearing as there was a directive by the Court that such cases as the one by the Claimants could not be fixed for hearing as only cases over 5 years were being set down for hearing. The Claimants thus sought the dismissal of the Application and the setting down of the case for hearing.
3. The Claimants claim could well have been dismissed were it not for the fact that there was a directive by the Court that only older cases from 2016 and before were to be fixed for hearing. That must have been of some comfort to parties who were not keen to proceed to have their cases heard. The Respondent though right in asserting that a case that has not been active beyond the period specified in the Rules can be dismissed for want of prosecution is hamstrung by the Court itself which issued the directive that misled the Claimants herein to be lax in the prosecution of their suit. As the real cause of the delay is the directive by the Court, I decline to dismiss the suit and instead order it to proceed for hearing on 5th August 2021 before any of the newly appointed ELRC Judges. There shall be no adjournment entertained.
It is so ordered.
Dated and delivered at Nairobi this 26th day of July 2021
Nzioki wa Makau
JUDGE