[2022] KEELRC 4017 (KLR)
The court found that the Claimant failed to provide any adequate or acceptable explanation for the prolonged delay in prosecuting the claim between 2012 and 2016, as well as for the subsequent 6-year delay in seeking reinstatement after the claim was dismissed for non-attendance. The court observed that the Claimant...
Source-derived case information.
- Citation
- [2022] KEELRC 4017 (KLR)
- Parties
- Applicant: Daniel Kimani; Respondent: Xhao Zhedong t/a Sing Sing [K] Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 634 of 2011
- Procedural Posture
- Reinstatement Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- application for reinstatement declined
- Judges
- J Rika
- Legal Topics
- Reinstatement of Dismissed Claim, Delay in Prosecution, Expeditious Justice, Non Attendance, Deposit of Security, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kimani
Applicant
Xhao Zhedong t/a Sing Sing [K] Limited
Respondent
Procedural Posture
Reinstatement Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the Claimant has provided adequate explanation for the delay in prosecuting the claim between 2012 and 2016.
- 2 Whether the Claimant has provided sufficient justification for the 6-year delay in seeking reinstatement after dismissal.
- 3 Whether reinstating the claim after 11 years would violate the principle of expeditious and fair administration of justice.
Ratio Decidendi
The court found that the Claimant failed to provide any adequate or acceptable explanation for the prolonged delay in prosecuting the claim between 2012 and 2016, as well as for the subsequent 6-year delay in seeking reinstatement after the claim was dismissed for non-attendance. The court observed that the Claimant appeared to have lost interest in prosecuting the matter after securing an order for the deposit of the full claim amount, and only resurfaced to seek reinstatement after an inordinate lapse of time. The court held that reviving the claim after 11 years would contravene the constitutional imperative of expeditious and fair administration of justice, and would unfairly...
Court Disposition
application for reinstatement declined
Orders
- The application filed by the Claimant dated 5th May 2022 is declined.
- No order on the costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
Kimani v Xhao Zhedong t/a Sing Sing [K] Limited (Cause 634 of 2011) [2022] KEELRC 4017 (KLR) (29 September 2022) (Ruling)
Neutral citation: [2022] KEELRC 4017 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 634 of 2011
J Rika, J
September 29, 2022
Between
Daniel Kimani
Claimant
and
Xhao Zhedong t/a Sing Sing [K] Limited
Respondent
Ruling
1. Parties agree that this Claim, was dismissed by the Court on 19th April 2016, when they both failed to attend Court for hearing.
2. The Claimant has filed an Application dated 6th May 2022, seeking reinstatement of the Claim.
3. The Application is founded on the Affidavit of the Claimant’s Advocate Dola Indidis, sworn on 6th May 2022.
4. The Advocate states that he did not receive notice from the Court on hearing scheduled on 19th April 2016. He states that Parties filed their Pleadings, and were waiting for a hearing date, when the Claim was dismissed.
5. Zhedong filed a Replying Affidavit sworn on 10th June 2022. He explains that the Claimant obtained ex parte orders through an Application dated 23rd August 2011, requiring the Respondent to deposit the sum of Kshs. 5,063,713 in Court, being the entire amount claimed, on the allegation that the Respondent, a Chinese national, was a flight risk. Having obtained the orders, the Claimant went to bed, and took no action, to prosecute his Claim between 20th September 2012 and 19th April 2016.
6. It was agreed by the Parties that the Application is considered and determined on the strength of their Affidavits and Submissions. Submissions were confirmed to have been filed and exchanged, at the last mention on 27th July 2022.
The Court finds: 7. There is no adequate explanation from the Claimant, of delay in prosecuting the Claim, between 20th September 2012 and 19th April 2016.
8. Similarly, there is no acceptable explanation from the Claimant, for delay of 6 years, from 19th April 2016 when the Claim was dismissed, to 6th May 2022, when the Application for reinstatement of the Claim was made.
9. The Claimant appears to have gone to bed in comfort, upon obtaining orders for deposit of the full dispute amount in Court, which was computed at a staggering Kshs. 5, 063,713. He was not interested in prosecuting the Claim, but waited to pounce on the Respondent, a Chinese national, against whom warrants of arrest had irregularly been obtained by the Claimant.
10. The Claim cannot be reinstated. It was filed way back in 2011. The Claimant squandered 11 years placed at his disposal by the Court, to prosecute his Claim. It would be in violation of the constitutional principle of expeditious and fair administration of justice, to revive the Claim, and require the Respondent to defend the Claim after 11 years of its presentation in Court.
It is ordered: -a.The Application filed by the Claimant dated 5th May 2022 is declined.b.No order on the costs of the Application.c.The files shall be marked as closed.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 29TH DAY OF SEPTEMBER 2022. JAMES RIKAJUDGE