[2018] KEELRC 2415 (KLR)
The court found that the delay in prosecuting the matter was not solely attributable to the claimant, as there were systemic constraints in the Nairobi court station, including judicial leave and a closed court diary, which made it difficult to secure hearing dates. Furthermore, the respondent had not complied with...
Source-derived case information.
- Citation
- [2018] KEELRC 2415 (KLR)
- Parties
- Applicant: Manasseh Munialo Wandabwa; Respondent: National Housing Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1043 of 2015
- Procedural Posture
- Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Dismissal, Want of Prosecution, Case Management, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Manasseh Munialo Wandabwa
Applicant
National Housing Corporation
Respondent
Procedural Posture
Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the claimant's suit should be dismissed for want of prosecution.
- 2 Whether the respondent's own non-compliance with pre-trial procedures affects its application.
- 3 Whether delays in setting hearing dates are attributable to the claimant or to systemic court constraints.
Ratio Decidendi
The court found that the delay in prosecuting the matter was not solely attributable to the claimant, as there were systemic constraints in the Nairobi court station, including judicial leave and a closed court diary, which made it difficult to secure hearing dates. Furthermore, the respondent had not complied with pre-trial requirements, such as filing witness statements and documents, and therefore did not approach the court with clean hands. The court held that the circumstances did not warrant dismissal for want of prosecution and that the interests of justice required the matter to proceed to hearing, subject to compliance with pre-trial directions.
Court Disposition
application dismissed
Orders
- The application dated 23 November 2017 is dismissed with no order as to costs.
- Respondent to file and serve witness statements and documents to be relied on (if any) before 28 February 2018.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1043 OF 2015
MANASEH MUNIALO WANDABWA....................CLAIMANT
v
NATIONAL HOUSING CORPORATION............RESPONDENT
RULING
1. Manasseh Munialo Wandabwa (Claimant) sued the National Housing Corporation (Respondent) on 17 June 2015 alleging unfair dismissal.
2. The Respondent filed its Response on 20 July 2015 prompting the Claimant to file a Reply to Response on 13 August 2015.
3. On 23 November 2017, the Respondent moved Court seeking
1. THAT the Claimant’s claim be dismissed for want of prosecution with costs to the Respondent/Applicant.
2. THATthe costs of this application be provided for.
4. Upon service of the motion, the Claimant’s advocate Kennedy Moseti Onkwani filed a replying affidavit in opposition, and arguments were taken on 5 February 2018.
5. In urging the application, the Respondent contended that 1 year had lapsed since the Cause was scheduled for hearing and that because the Claimant had not taken any further steps to set the Cause for hearing that was an indication of disinterest.
6. In opposing the motion, the Claimant asserted that the Cause could not proceed to hearing on 15 September 2016 because the Judge who was to hear it was on leave and that a hearing date could not be taken in 2017 because the court diary for that year was closed within 2 weeks of being opened.
7. The Court has considered the contentions by the parties.
8. The Court notes that the Respondent itself has not complied with the Rules of the Court as to pre-trial processes (the filing of witness statements and documents). Its hands are therefore not clean.
9. On the merits of the application, it is in the public domain and more so to those who practice and litigate in the Nairobi Court station that due to constraints beyond the parties and the staff of the Court, securing of hearing dates has not been easy.
10. In fact, there is presently a notice from the Deputy Registrar that Causes filed prior to 2015 cannot be fixed for hearing, in order to allow the Judges available deal with the huge backlog on the Court’s docket.
11. The delay, if there has been any on the part of the Claimant cannot be reason enough to dismiss the Cause for want of prosecution.
12. The Court therefore orders that
(i) The application dated 23 November 2017 be dismissed with no order as to costs.
(ii) Respondent to file and serve witness statements and documents to be relied (if any) before 28 February 2018.
(iii) Agreed Issues to be filed before 30 March 2018.
(iv) If Agreed Issues are not filed as directed, Claimant to file its Proposed Issues as sent to the Respondent before 15 April 2018, for adoption by the Court.
Delivered, dated and signed in Nairobi on this 16th day of February 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Moseti instructed by K. Moseti & Co. Advocates
For Respondent Ms. Kinyua instructed by Kiarie, Kariuki & Associates Advocates
Court Assistant Lindsey