[2020] KEELRC 1535 (KLR)
The court found that neither party had made any meaningful effort to trace or reconstruct the missing file, and that the absence of the file was the primary reason for the delay in prosecution. The court held that it would be unjust to dismiss the suit for want of prosecution when the file was missing and both...
Source-derived case information.
- Citation
- [2020] KEELRC 1535 (KLR)
- Parties
- Claimant: Lewis Onyoni Motieri; Respondent: Farmers United/One Acre Fund
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 26 of 2014
- Procedural Posture
- Miscellaneous Cause / Ruling on Application for File Reconstruction and Dismissal for Want of Prosecution
- Outcome
- application for dismissal denied; file reconstruction ordered
- Judges
- MN Nduma
- Legal Topics
- Reconstruction of Court File, Dismissal for Want of Prosecution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lewis Onyoni Motieri
Claimant
Farmers United/One Acre Fund
Respondent
Procedural Posture
Miscellaneous Cause / Ruling on Application for File Reconstruction and Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the court file for Kisumu Industrial Cause No. 84 of 2014 should be reconstructed.
- 2 Whether the suit should be dismissed for want of prosecution in the absence of the court file.
Ratio Decidendi
The court found that neither party had made any meaningful effort to trace or reconstruct the missing file, and that the absence of the file was the primary reason for the delay in prosecution. The court held that it would be unjust to dismiss the suit for want of prosecution when the file was missing and both parties were equally indolent. The appropriate remedy was to order the Deputy Registrar to reconstruct the file within a specified period, with both parties required to provide all pleadings and correspondence in their possession. The court further directed that the matter be listed for hearing within 14 days of reconstruction, failing which both the main claim and counterclaim...
Court Disposition
application for dismissal denied; file reconstruction ordered
Orders
- The Deputy Registrar to reconstruct Kisumu Industrial Cause No. 84 of 2014 within 30 days if the file is missing.
- The claimant and respondent to provide all pleadings and correspondence in their possession within 10 days to enable reconstruction.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISC. CAUSE NO. 26 OF 2014
(Before Hon. Justice Mathews N. Nduma)
LEWIS ONYONI MOTIERI................................................................. CLAIMANT
VERSUS
FARMERS UNITED/ONE ACRE FUND...........................................RESPONDENT
RULING
1. The Respondent/Applicant filed application dated 24th November 2014 seeking to have the file in respect of Kisumu Industrial Cause No. 84 of 2014 be re-constructed. The application was not prosecuted.
2. On 14th June 2019, the Respondent/Applicant filed yet another application to have the file reconstructed and the suit be dismissed for want of prosecution.
3. M/S N.E. Mogusu and Associates filed grounds of opposition dated 26th June 2019 opposing the application for dismissal but was not opposed to reconstruction of the file on the basis that the file was missing. The claimant argues that he has been unable to prosecute the suit since the court file is missing. The claimant states that the respondent has been unable to prosecute the counter claim for the same reason that the file is missing.
4. The court notes with concern that the claimant appear to have made no effort to trace the file or have another file re-constructed to allow expedient prosecution of this case. There is no correspondence written by either the claimant or the respondent to the Deputy Registrar of the court seeking to have the file traced. In fact the allegation that the file went missing appear to be completely unsupported by any correspondence.
5. The above is evidence of indolence on the part of both parties in this matter. No wonder, the application filed by the respondent on 4th December 2014, has not been prosecuted to date.
6. Having said that there is need to have the Deputy Registrar reconstruct Kisumu Industrial Cause No. 84 of 2014, Lewis Onyoni Motieri vs Farmers United/One Acre Fund to allow hearing and determination of the suit. There being no file, the prayer for dismissal on grounds of non-prosecution in untenable.
7. Accordingly, the court makes the following orders:
(i) The Deputy Registrar, Employment and Labour Relations Court reconstruct Kisumu Industrial Cause No. 84 of 2014: Lewis Onyoni Motieri vs Farmers United/One Acre Fund within the next 30 days if indeed the file is missing at the registry.
(ii) The claimant and the respondent to provide to the court vide the registry all the pleadings and correspondence in their possession within 10 days of this judgment to enable the Deputy Registrar reconstruct the file.
(iii) The claimant and the respondent to cause the matter to be listed for hearing and determination within 14 days of reconstruction of the file by the Registrar failing which the main claim and the counter claim will stand dismissed for non-prosecution.
8. Costs in the cause.
Ruling Dated, Signed and delivered this 20th day of February, 2020
Mathews N. Nduma
Judge
Appearances
Annet Mumalasi and Company Advocates for the Respondent/Applicant.
N.E. Mogusu and Company Associates for the Claimant/Respondent
Chrispo – Court Clerk