[2018] KEELRC 1036 (KLR)
The court found that there was no clear record of how the hearing date of 25th September, 2017 was fixed or which party fixed it, and there was no evidence that the claimants were served with the hearing notice. The court observed that the matter had been active, with adjournments occasioned by both sides, and there...
Source-derived case information.
- Citation
- [2018] KEELRC 1036 (KLR)
- Parties
- Applicant: Login Gimonde Lwandenge & 19 Others; Respondent: Attorney General & Another
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1024 of 2012
- Procedural Posture
- Employment Cause / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application allowed; dismissal order set aside; suit reinstated
- Judges
- NJ Abuodha
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Login Gimonde Lwandenge & 19 Others
Applicant
Attorney General & Another
Respondent
Procedural Posture
Employment Cause / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the claimants were properly served with the hearing date for 25th September, 2017.
- 3 Whether the circumstances justified the drastic order of dismissal for want of prosecution.
Ratio Decidendi
The court found that there was no clear record of how the hearing date of 25th September, 2017 was fixed or which party fixed it, and there was no evidence that the claimants were served with the hearing notice. The court observed that the matter had been active, with adjournments occasioned by both sides, and there was no indication that the claimants had lost interest in prosecuting the suit. Given the drastic nature of a dismissal for want of prosecution and the lack of clarity on service of the hearing date, the court exercised its discretion to set aside the dismissal order and reinstate the suit, allowing the claimants the opportunity to be heard.
Court Disposition
application allowed; dismissal order set aside; suit reinstated
Orders
- The application to set aside the order of dismissal for want of prosecution is allowed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE 1024 OF 2012
LOGIN GIMONDE LWANDEGE & 19 OTHERS....CLAIMANT
VERSUS
ATTORNEY GENERAL & ANOTHER..............RESPONDENT
RULING
1. This suit was on 25th September, 2017 dismissed for want of prosecution by Ndolo J when the same came for hearing and only the respondent was present and applied that it be dismissed for want of prosecution. The claimant’s counsel has sought the setting aside of the said order on the basis that the suit was scheduled for mention on 19th October, 2017 before the Deputy Registrar but the same was not listed on that day.
2. He was referred to the cause list section at the Registry by the Deputy Registrar. Upon perusal of the file, counsel found that the matter had been listed for hearing on 25th September, 2017 before Lady Justice Ndolo contrary to the summons to attend court.
3. The court has perused the record and the latest minutes prior to the dismissal of the suit show that the matter was on 23rd May, 2017 listed before Mbaru J for hearing but did not proceed because the claimant was indisposed. Parties were directed by the judge to take a fresh date at the registry. On September, 2017 the matter was listed for hearing before Ndolo J who as stated earlier dismissed the same for want of prosecution at the prompting of the respondent.
4. There is however no minute on record how the date for 25th September, 2017 was fixed and which party fixed it. The claimant therefore could be right that the date was fixed by the court and not served on the claimant. A dismissal of suit for want of prosecution is a drastic order since it deprives a claimant of the right of audience before the court to prosecute their case.
5. The order should therefore be made only in clear and obvious cases where it can be shown that the claimant has indeed lost interest in the matter and the same should be dismissed. A perusal of the record shows this matter has been active with adjournments being occasioned by either side for one reason or the other.
6. This observation coupled with the fact that it was not clear how the date for 25th September, 2017 was fixed makes an excusable case where the court should exercise its discretion and set aside the order of dismissal for want of prosecution.
7. The application is consequently allowed with no order as to costs. Parties to set the suit down for hearing on priority basis.
8. It is so ordered.
Dated at Nairobi this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
Delivered this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
..............................for the Claimant and
..................................for the Respondent