[2015] KEELRC 575 (KLR)
The court found that while there had been delay in prosecuting the suit, the evidence did not conclusively show that the claimant was solely responsible for the delay. The court emphasized that justice is better served by allowing parties to have their day in court rather than disposing of matters on technicalities....
Source-derived case information.
- Citation
- [2015] KEELRC 575 (KLR)
- Parties
- Applicant: Kenya Engineering Workers’ Union; Respondent: I.S.L. Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2022 of 2011
- Procedural Posture
- Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution disallowed.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Right to Be Heard, Court Discretion, Out of Court Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers’ Union
Applicant
I.S.L. Kenya Ltd
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 inaction by the claimant.
- 2 Whether the delay in prosecuting the suit is attributable to the claimant or the respondent.
- 3 Whether the interests of justice are better served by hearing the matter on its merits rather than dismissal on technicality.
Ratio Decidendi
The court found that while there had been delay in prosecuting the suit, the evidence did not conclusively show that the claimant was solely responsible for the delay. The court emphasized that justice is better served by allowing parties to have their day in court rather than disposing of matters on technicalities. The application for dismissal was therefore disallowed, with a direction that the claimant should set the matter down for hearing at the earliest opportunity.
Court Disposition
Application for dismissal for want of prosecution disallowed.
Orders
- The application for dismissal is disallowed.
- The claimant is directed to set the suit down for hearing at the earliest opportunity.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2022 OF 2011
KENYA ENGINEERING WORKERS’ UNION….............CLAIMANT
VERSUS
I.S.L. KENYA LTD...............................................RESPONDENT
RULING
1. Before me is a motion seeking dismissal of this suit for want of prosecution. The applicant who is the respondent contends that the claimant has not taken a step in over two years to prosecute the suit herein. The respondent therefore feels prejudiced by the abeyance of this matter.
2. According to Mr. Okello in his affidavit sworn in support of the application, this claim was filed against the respondent on 30th November, 2011 and that the matter was last in Court on 21st February, 2012 for mention and was taken out by the claimants since they had not served a mention notice. Mr. Okello therefore deponed that the claimant was not interested in the suit and the same ought to be dismissed by the Court.
3. The claimant opposed the application claiming that when the suit was filed the respondent was fully in operation. After filing the suit the respondent sacked some of the unionizable employees because there was no material to enable the respondent operate fully as required. The respondent’s doors have since remained closed and only guards are at the premises.
4. According to the claimant, it is the respondent who appealed to the claimant to ask the Court to allow parties to negotiate out of Court and report the outcome but no negotiations have taken place because the directors of the respondent are not within the premises. The claimants therefore blamed the respondent for the delay.
5. I have perused the Court minutes on this file and can only go as far back as 1st April, 2014 when the matter came before Lady Justice Ndolo for the hearing of the present application. Mr. Baraza who appeared for the claimant asked for time to file a reply to the application which the Judge granted. The Court therefore cannot confirm the averments of Mr. Okello in support of the instant application regarding the delay on part of the respondent to prosecute this suit. Whereas this Court does not encourage indolent litigants, a hearing on merit finally resolves disputes more than a disposal on technicality. The Court therefore leans more towards allowing parties their day in Court rather than dismissal on technicality.
6. I would therefore disallow this application but direct that the claimant sets the same down for hearing at the earliest opportunity.
7. It is so ordered.
Dated at Nairobi this 17th day of July 2015
Abuodha J. N.
Judge
Delivered this 17th day of July 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge