[2025] KEELRC 1794 (KLR)

Levs Trading Company Limited v Sibolo (Appeal E074 of 2022) [2025] KEELRC 1794 (KLR) (19 June 2025) (Ruling)

Neutral citation: [2025] KEELRC 1794 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Appeal E074 of 2022

CN Baari, J

June 19, 2025

Between

Levs Trading Company Limited

Claimant

and

Moses Wanyonyi Sibolo

Respondent

Ruling

1. Before Court is a Notice of Motion application dated 4th November, 2024, wherein, the Applicant seeks orders THAT: -i.This honourable court be pleased to dismiss the pending appeal for want of prosecutionii.The Appellant be ordered to pay the entire decretal sum plus costs and interest accrued thereon from the date of judgment of the lower court to date.iii.In the alternative, but without prejudice to the foregoing, in the event that the Honourable court is not inclined to dismiss the pending Appeal, the Appellant be compelled to pay at least half the decretal sum to the Respondent as he awaits the determination of the pending Appeal since, the termination of employment and service of summons are not denied.iv.The Appellant be ordered to pay costs of this application.

2. The Motion is supported by grounds on the face thereof, and the supporting and further affidavits of Moses Wanyonyi Sibolo the Applicant herein. The Applicant argues that the Appellant filed a memorandum of appeal dated 15th May 2022 being an appeal against the Judgment and Decree of Honourable Lesootia Saitabau Principal Magistrate in Civil Suit No.E1314 of 2021, which was delivered on 19th May 2022 at the Milimani Chief Magistrates Court.

3. He avers that it is now over two years since the appeal was filed and the Appellant has never taken any steps towards the disposal of the said appeal. He contends further, that the Appellant has not filed and served the Record of Appeal or in any way to moved the court in order to have the pending appeal heard and determined.

4. The Applicant states that the delay is inordinate and inexcusable on the part of the Appellant, and that it is apparent that the Appellant is no longer interested in the expedient prosecution of the appeal which remains an unnecessary burden to the Respondent.

5. It is his position that there is no justifiable ground for the continued delay on the Appellant’s part, and the continued pendency of this suit is prejudicial to the Respondent.

6. The Applicant states that it is in the interest of justice that litigation, once commenced, should come to an end within reasonable time, as justice delayed is justice denied.

7. The Applicant avers that it is only fair in view of the time, that this application be granted.

8. The Respondent/Appellant opposed the Motion vide a Replying affidavit sworn by Samuel Karanja on 19th December, 2024.

9. The Appellant/Respondent states that through its representative, it has from time to time been calling on the court's registry to check on the status of typed proceedings, and that on 17th December, 2024 it issued a written reminder to the court' s registry.

10. It avers that it is ready and willing to pursue the appeal to its conclusion once the court's documents have been availed. It further avers that the reliefs sought by the Applicant are res judicata as the terms of stay pending appeal were considered by the Court when it delivered its ruling on 20th November 2023 and ordered that the judgment sum be deposited in court which was done.

11. The Appellant/Respondent avers that it will be in the interest of justice that the appeal is heard on merits.

12. The Appellant/Respondent argues that the instant application is not meritorious and prays that the same be dismissed with costs.

13. Parties urged the Motion by oral submissions on 8th May, 2025 where they reiterated their pleadings.

Determination. 14. The issue for determination is whether the appeal herein should be dismissed for want of prosecution.

15. Order 35 Rule 2 of the Civil Procedure Rules provides that if within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.

16. In the case of Chairman Co-operative Tribunal and 8 others ex- parte management committee Konza Ranching and Farming Co-operative Society Ltd (2014) the court cited the case of Stephen Somek Takwenyi and other V David Mbuthia Githere and 2 others Nairobi (Milimani) HCC No. 363 of 2009 for the holding that: -“The court has inherent jurisdiction to maintain the integrity of the judicial process and prevent its abuse. This power is used to ensure that the court’s machinery is not misused for ulterior motives or collateral advantages. Abuse of process can occur in various ways and is not exhaustively listed. It can be identified through the steps taken or extrinsic evidence. When abuse is evident, the court must intervene to stop it and such abuses, but the inherent jurisdiction of the court exists independently to prevent misuse and ensure justice.

17. The Appellant/Respondent filed the appeal in this matter on 16th June, 2022, and subsequently obtained stay orders against the judgment and decree of the Magistrates Court in MCELRC E1314 of 2021-Moses Wanyonyi Sibolo vs. Levs Trading Company Limited pending hearing of its appeal, and which orders were granted on 20th November, 2023 conditional on the Appellant depositing the sum of Kshs. 397,631/- in court as security.

18. The Appellant then proceeded to deposit the sum as directed on 5th December, 2023. It contends that it has been calling the court registry from time to time to check on the status of typed proceedings, but to date the same have not been supplied.

19. The Applicant on his part contends that the Appellant/Respondent has not taken steps to prosecute the appeal since filing and was only jolted to write to the court seeking typed proceedings when the instant motion was filed.

20. In the case of Ivita V Kyumba [1984] KLR 441 espoused that: -“The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest time. It is a matter of and in the discretion of the court.”

21. Although the Appellant/Respondent has not shown prove of its calls to the court registry, I note that the typed proceedings are to date not in the court record six months after the Appellant/Respondent wrote to the registry seeking to be supplied with the proceedings.

22. In the case of Tome & Another v. Attorney General & 2 others [2021] KECA 150 (KLR) the Court cited the Supreme Court decision in Hassan Nyange Charo V Khatib Mwashetani & 3 others (2014) eKLR for the holding that: -“Counsel for the respondent has been diligent in his pursuit to get the proceedings, but to no avail- indeed the last resort is the letter dated June, 2021. The applicant is not at fault and she cannot be driven from the seat of justice empty-handed by denying her an opportunity to exercise her undoubted right of appeal.”

23. Similarly, and being evident that the typed proceedings are still not ready, I will be slow to drive the Appellant/Respondent from the seat of justice for no wrong of its own.

24. I therefore find the Motion devoid of merit and is hereby dismissed.

25. I further order that the DR urgently facilitates the supply of typed proceedings, and the appeal herein be set down for directions and hearing on priority basis.

26. Orders accordingly.

SIGNED, DATED AND DELIVERED AT NAIROBI THIS 19THDAY OF JUNE, 2025C. N. BAARIJUDGEAppearance:Ms. Kemunto present for the Appellant/RespondentMs. Maina h/b for Mr. Chebiego for the Respondent/ApplicantMs. Esther S - Court Assistant