[2023] KEELRC 157 (KLR)
The court found that the claimants failed to comply with its order requiring the filing of an affidavit showing cause within seven days. The affidavit was filed after the deadline, without leave of court, and after the suit had already stood dismissed by operation of the court's prior order. The court held that...
Source-derived case information.
- Citation
- [2023] KEELRC 157 (KLR)
- Parties
- Applicant: Nicodemus Mutio Kilote; Applicant: Carilus Sinogo Nyajong; Applicant: Henry Kiko; Applicant: Daniel Muntyithya; Respondent: Shiva Carriers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Cause 972 of 2016
- Procedural Posture
- Employment and Labour Cause / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- AK Nzei
- Legal Topics
- Dismissal for Want of Prosecution, Court Procedure, Affidavit Filing Deadlines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicodemus Mutio Kilote
Applicant
Carilus Sinogo Nyajong
Applicant
Henry Kiko
Applicant
Daniel Muntyithya
Applicant
Shiva Carriers Limited
Respondent
Procedural Posture
Employment and Labour 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 late-filed affidavit by the claimant's advocate could be considered by the court.
Ratio Decidendi
The court found that the claimants failed to comply with its order requiring the filing of an affidavit showing cause within seven days. The affidavit was filed after the deadline, without leave of court, and after the suit had already stood dismissed by operation of the court's prior order. The court held that strict compliance with procedural timelines is mandatory, and failure to do so, absent leave or reasonable cause, results in dismissal for want of prosecution. The late affidavit was struck out as it was filed on a non-existent suit. Accordingly, the suit was dismissed and the court file ordered closed.
Court Disposition
suit dismissed for want of prosecution
Orders
- The claimants' suit is dismissed for want of prosecution.
- The court file is ordered closed.
Full Case Text
Judgment text and source record
29 paragraphs
Kilote & 3 others v Shiva Carriers Limited (Employment and Labour Relations Cause 972 of 2016) [2023] KEELRC 157 (KLR) (26 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 157 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Employment and Labour Relations Cause 972 of 2016
AK Nzei, J
January 26, 2023
Between
Nicodemus Mutio Kilote
1st Claimant
Carilus Sinogo Nyajong
2nd Claimant
Henry Kiko
3rd Claimant
Daniel Muntyithya
4th Claimant
and
Shiva Carriers Limited
Respondent
Ruling
1. This is a 2016 suit. Record shows that hearing of the suit has never proceeded, and that the suit was last in Court on December 15, 2020. On September 18, 2022, this Court’s Deputy Registrar issued a notice to the parties herein under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, requiring them to attend Court on October 21, 2022 and show cause why the suit could not be dismissed for want of prosecution.
2. Section 16 of the Employment and Labour Relations Court (Procedure) Rules 2016 provides as follows:-(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 expeditious hearing and determination of the suit.(3)Any party to the suit may apply for dismissal as provided in paragraph (1).(4)The Court may dismiss the suit for non-compliance with any direction given under this Rule.'
3. When the suit came up in Court for Notice to show cause on October 28, 2022, Counsel for the Claimant attended Court and told the Court that the Claimant was still desirious of prosecuting the suit. I made the following orders:-'1. The Claimant shall, within 7 days, file an affidavit showing cause why the suit should not be dismissed for want of prosecution, failing which the suit shall stand dismissed for want of prosecution.
2. Mention on November 16, 2022. '
4. Seven days lapsed on November 4, 2022, and no show cause affidavit had been filed as at that date. The suit stood dismissed for want of prosecution.
5. The Court’s record shows that on November 10, 2022, an affidavit, shown to have been sworn by Kitonga Kiiva Advocate on November 1, 2022, was filed in Court. The said affidavit was clearly filed outside the time ordered by the Court on October 28, 2022, without leave and on a non-existent suit. The same is hereby struck down.
6. The Claimant’s suit herein stands dismissed for want of prosecution, and the Court file herein is hereby ordered to be closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 26TH DAY OF JANUARY 2023. AGNES KITIKU NZEIJUDGEORDERIn 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 NZEIJUDGEAppearance:Ms. Ombsa for ClaimantN/A Respondent