https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1523

Luvisi v Egerton University (Employment and Labour Relations Cause E058 of 2023) [2026] KEELRC 1523 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1523 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Cause E058 of 2023 AN Mwaure, J June 4, 2026 Between Harun Ndayala Luvisi Claimant and Egerton University Respondent Ruling Introduction 1.The Respondent/Applicant filed a Notice of Motion dated 12th January 2026 seeking the following orders that: 1.This Honourable Court be pleased to dismiss the suit against the Respondent with costs for want of prosecution. 2.Cost of this application be provided for and borne by the Claimant. 2.The application is brought under Order 17 Rule 2 (1) &(3), Order 51 Rule 1 of the Civil Procedure Rules 2010, section 3A of the Civil Procedure Act and all other enabling provisions of the law. Respondent/Applicant’s case 3.The application is supported by the affidavit of Betty Mwangi, the Respondent/Applicant’s advocate, dated even date as the application. 4.The Respondent/Applicant avers tha the Claimant/Respondent filed the suit and a Statement of Claim accompanied by a Notice of Motion both dated on 23rd November 2023, to which the Respondent filed a Memorandum of Appearance on 28th November 2023 and a response on 3rd December 2023. 5.The Respondent/Applicant avers that the matter was mentioned on 30th November 2023, where parties were encouraged to negotiate, and by 14th December 2023, they reported a settlement. 6.On 20th December 2023, the Respondent/Applicant avers that the court adopted a consent granting interim injunction orders staying disciplinary proceedings against the Claimant/Applicant pending determination of the main suit. 7.The Respondent/Applicant avers that since 23rd December 2023, the Claimant/Respondent has taken no steps to prosecute the matter, thereby causing prejudice and unnecessary expense to it, while benefiting from interim orders. 8.The Respondent/Applicant avers that the inaction is a deliberate ploy to delay disciplinary proceedings and urges the court to dismiss the suit for want of prosecution in the interest of justice. Claimant/Respondent’s replying affidavit 9.The Claimant/Respondent opposed the application vide a replying affidavit dated 26th January 2026. 10.The Claimant/Respondent avers that he filed the claim and application on 23rd November 2023, with directions issued on 24th November 2023, and subsequent mentions on 30th November, 14th December, and 20th December 2023, where parties recorded a consent staying disciplinary proceedings. 11.The Claimant/Respondent argues that the Respondent itself delayed the matter by filing its response only on 4th December 2024 and witness statement on 12th August 2025, thereby contributing to the slow progression. 12.The Claimant/Respondent emphasizes that dismissal for want of prosecution is a discretionary and “draconian” remedy under Order 17 Rule 2 of the Civil Procedure Rules, requiring proof of inordinate, inexcusable, and prejudicial delay, which the Respondent/Applicant has not demonstrated. 13.The Claimant/Respondent maintains his readiness to proceed with the hearing, asserts that the Respondent’s application is made in bad faith and amounts to abuse of process, and urges the court to dismiss it with costs so the matter can be determined on its merits in line with the constitutional right to a fair hearing. 14.Parties were directed to file written submissions. Respondent/Applicant’s written submissions 15.The Respondent/Applicant submitted that it is seeking dismissal of the Claimant/Respondent’s suit and invokes the Oxygen Principle and Article 159(2)(b) of the Constitution, which emphasize the need for just, expeditious, and affordable resolution of disputes. The Respondent/Applicant relied on the case of Murathi & 15 Others v County Government of Murang’a & Others[2025] KEHC 2359 (KLR), where the court stated that the criteria courts must consider before dismissing a matter: whether delay has been established, its length, whether it is inordinate and inexcusable, and whether the delay prejudices the applicant. The rationale is that justice should not be delayed, and once a party files a dispute, they must actively pursue its resolution without undue delay. 16.The Respondent/Applicant relied on the case of Chemjor v Kenya Commercial Bank [2024] KEHC 1148 (KLR) where the court cited the case of Argan Wekesa Okumu v Dima College Limited & 2 others [2015] eKLR where Justice A. Mabeya stated as follows:“The principle governing application for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The Applicant must show that the delay complained of is inordinate, that the inordinate is inexcusable and that the Defendant is likely to be prejudiced by such delay.”(Emphasis ours). 17.The Respondent/Applicant submitted that the Claimant/Respondent has delayed prosecuting the suit since December 2023, demonstrating disinterest and causing prejudice to the Respondent/Applicant. The Respondent has been burdened with ongoing legal costs due to the need to retain counsel despite the Claimant’s inaction. Invoking the Oxygen Principle, the Respondent contended that justice requires dismissal of the suit to prevent further unnecessary expense. 18.Finally, the Respondent/Applicant submitted that costs should follow the event, meaning the Claimant/Respondent should bear the costs of the application since their failure to prosecute necessitated it. Claimant/Respondent’s written submissions 19.The Claimant/Respondent submitted that dismissal is a “draconian act” only to be exercised in the clearest of cases, citing Ivita v Kyumbu [1984] KEHC 4 (KLR), which established the test of whether delay is inordinate, inexcusable, and prejudicial. The Claimant/Respondent also relied on the cases of Communications Courier & Another v Telkom (K) Ltd [1999] eKLR, Mwangi S. Kimenyi v Attorney General & Another [2014] eKLR, Utalii Transport Company Limited & 3 Others v NIC Bank & Another [2014] eKLR, and Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, all of which emphasize that delay must cause irretrievable prejudice before dismissal is justified. 20.The Claimant/Respondent maintains that no prejudice has been shown, as the Respondent retains records and witnesses, and that constitutional guarantees under Articles 48, 50(1), and 159(2)(d) favor resolution on the merits rather than technicalities. The Claimant/Respondent further submitted that any inconvenience can be cured by costs, and that employment disputes implicate livelihood and dignity, making dismissal disproportionate. 21.Ultimately, the Claimant/Respondent urged the court to dismiss the Respondent’s motion with costs, arguing that the delay was neither inordinate nor inexcusable, and that justice requires the matter to proceed to hearing. Analysis and determination 22.The court has considered the application, supporting affidavit, replying affidavit together with rival submissions on record; the singular issue for determination is whether is application is meritorious. 23.Order 17 Rule 2 and 3 of the Civil Procedure Rules provides that if no step is taken in a suit for one year, the court may issue notice to the parties to show cause why the suit should not be dismissed, and if no satisfactory cause is shown, it may dismiss the suit. If cause is shown, the court may instead issue directions to ensure expeditious hearing. Any party may also apply for dismissal, and the court may dismiss for non-compliance with its directions. Additionally, a suit automatically stands dismissed after two years of inactivity, though a party may later apply to court after such dismissal. Further, if parties fail to appear on a hearing date, the court may dispose of the matter under Order 12 or make any other appropriate order. 24.In Ivita v Kyumbu(supra) Chesoni J stated as follows:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” 25.In Thika Coffee Mills Limited v Gakuyu Farmers Co-orperative Society & 2 others [2022] KECA 160 (KLR) the Court of Appeal cited the case of Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium Vs. M.D. Popat & Others & Another [2016] eKLR where the court stated that the delay in setting down a suit for hearing no doubt prejudices a party as justice delayed is justice denied. That the appellant had not given any excuse for its inaction. That the court was aware that the act of dismissing a suit is a draconian measure which should be exercised cautiously as it drives a party away from the seat of justice. Nonetheless, the court is bound to do justice to both parties without undue delay. 26.In this instant case, the Respondent/Applicant states that the Claimant/Respondent filed the suit and accompanying application on 23rd November 2023, to which the Respondent promptly entered appearance and filed a response. The matter was mentioned on 30th November 2023, where parties were encouraged to negotiate, and by 14th December 2023 they reported a settlement. On 20th December 2023, the court adopted a consent granting interim injunctions to stay disciplinary proceedings against the Claimant. However, since 23rd December 2023, the Claimant/Respondent has taken no steps to prosecute the matter, leaving the Respondent/Applicant prejudiced and incurring unnecessary expenses while the Claimant continues to benefit from interim orders. The Claimant/Respondent argues that he filed the claim and application on 23rd November 2023, with directions issued the following day and mentions held on 30th November, 14th December, and 20th December 2023, during which a consent was recorded to stay disciplinary proceedings. He argues that delays in the matter were largely caused by the Respondent/Applicant, who only filed its response on 4th December 2024 and witness statement on 12th August 2025, thereby contributing to the slow progression of the case. 27.The court adopted the consent entered by the respective counsels dated 18th December 2023. The consent provided that temporary injunction was issued staying disciplinary proceedings. 28.The court finds the delay in setting down the case for hearing has been long and unreasonable. This being a suit pertaining to stay of disciplinary proceedings it is unreasonable to delay proceedings for about three years. The disciplinary proceedings may now not even make sense since the issues that were the cause of disiplinary proceedings would even be over-taken by events and the witnesses may have left the organisation. The court even wonders if the Applicant is still working for the Respondent and if so on what grounds considering the serious charge of sexual harrassment of a student. 29.The court is of the view that this matter has remained dormant since the consent order recorded on 20th December 2023. It is incumbent upon the parties to keep the court appraised of developments and to actively pursue prosecution of the suit, failing which the case contributes to unnecessary backlog in the registry. The court is satisfied that the Claimant/Respondent has failed to take meaningful steps to advance the matter and has thereby prolonged its prosecution without justification. 30.The court is guided by the holding in the case of Thika Coffee Gakuyu Farmers Co-operative Society & 2 Others (Supra) where the court stated that delaying settling down a suit for hearing no doubt prejudices a party as justice delayed is justice denied. 31.The court has considered the pleadings and respective submissions and is persuaded the Application by the Respondent has merits and so is allowed and the suit is dismissed. 32.Excercising its discretion the court orders each party to meet their costs of the application and of the suit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 4TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE