[2024] KEELRC 23 (KLR)
The court found that although the claimant had failed to take steps to prosecute the case since October 2021 and had filed an un-commissioned affidavit in response to the application, the oral submissions by the claimant's representative, citing ill health due to an accident, provided a reasonable explanation for...
Source-derived case information.
- Citation
- [2024] KEELRC 23 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Metal Equipment Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E272 of 2021
- Procedural Posture
- Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined.
- Judges
- L Ndolo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Metal Equipment Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the claim should be dismissed for want of prosecution due to the claimant's inaction.
- 2 Whether the claimant provided sufficient justification for the delay in prosecuting the case.
Ratio Decidendi
The court found that although the claimant had failed to take steps to prosecute the case since October 2021 and had filed an un-commissioned affidavit in response to the application, the oral submissions by the claimant's representative, citing ill health due to an accident, provided a reasonable explanation for the delay. The court exercised its discretion to decline the respondent's application for dismissal for want of prosecution, emphasizing the need to determine the matter on its merits. The court directed the parties to set the matter down for hearing and ordered that the costs of the application be in the cause.
Court Disposition
Application for dismissal for want of prosecution declined.
Orders
- The application to dismiss the claim for want of prosecution is declined.
- The parties are directed to set the matter down for hearing on merit.
Full Case Text
Judgment text and source record
22 paragraphs
Kenya Engineering Workers Union v Metal Equipment Limited (Cause E272 of 2021) [2024] KEELRC 23 (KLR) (25 January 2024) (Ruling)
Neutral citation: [2024] KEELRC 23 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E272 of 2021
L Ndolo, J
January 25, 2024
Between
Kenya Engineering Workers Union
Claimant
and
Metal Equipment Limited
Respondent
Ruling
1. This claim was filed in court on April 1, 2021. Alongside the Memorandum of claim, the claimant filed a notice of motion under certificate of urgency. i dispensed with the notice of motion by my ruling delivered on October 7, 2021.
2. There was no further action on the matter until October 11, 2023, when the Respondent moved the court to have the claim dismissed for want of prosecution. The respondent’s notice of motion in this regard is supported by an affidavit sworn by its Counsel, Ondieki Robert and is premised on the following grounds:a.That the suit was last in court on October 7, 2021 for ruling on the claimant’s application, which was dismissed;b.That since then, the claimant has not set down the matter for pre-trial or hearing nor has it taken any steps to have the matter set down for directions;c.That the claimant has inordinately failed, refused and/or neglected to take any steps to prosecute its case;d.That the claimant has not demonstrated any intention and/or willingness to prosecute its case.
3. In an attempt to respond to the respondent’s application, the claimant filed an un-commissioned affidavit. The claimant also appears to have misunderstood the subject matter of the application.
4. Despite these lapses however, the court will rely on the oral submissions of the Union Representative, Mr. Araka that he had suffered ill health resulting from an accident.
5. I will therefore decline the application to have the matter dismissed for want of prosecution and direct the parties to set it down for hearing on merit.
6. The costs of the application will be in the cause.
7. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 25THDAY OF JANUARY 2024LINNET NDOLOJUDGEAppearance:Mr. Araka for the ClaimantMr. Ondieki for the Respondent