[2021] KEELRC 892 (KLR)
The court found that the delay in prosecuting the suit was not due to any willful or negligent conduct by the claimant but was instead a result of the Employment and Labour Relations Court's backlog and its policy of allocating hearing dates only to matters filed in 2016 and 2017. The court took judicial notice of...
Source-derived case information.
- Citation
- [2021] KEELRC 892 (KLR)
- Parties
- Respondent: Michael Onyango Ojwang; Applicant: Finetjet Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1623 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Court Backlog, Judicial Notice, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Onyango Ojwang
Respondent
Finetjet Limited
Applicant
Procedural Posture
Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to alleged inaction by the claimant.
- 2 Whether the delay in prosecuting the suit was attributable to the claimant or to systemic court backlog.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not due to any willful or negligent conduct by the claimant but was instead a result of the Employment and Labour Relations Court's backlog and its policy of allocating hearing dates only to matters filed in 2016 and 2017. The court took judicial notice of this notorious fact and held that it would be unjust to penalize the claimant for circumstances beyond his control. Consequently, the application to dismiss the suit for want of prosecution lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed with costs in the cause.
- A hearing date to be allocated for the suit upon delivery of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT LABOUR RELATIONS COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CAUSE NO. 1623 OF 2018
MICHAEL ONYANGO OJWANG............CLAIMANT/RESPONDENT
VERSUS
FINETJET LIMITED................................RESPONDENT/APPLICANT
RULING
1. The applicant in the application dated 22nd January 2021, prays for the dismissal of the suit for want of prosecution on the grounds that the matter was last in Court on 27th February 2019 for hearing of the respondent’s application. That parties filed agreed statement of issues and the claimant did not take any further steps to prosecute the matter. The allegations are buttressed in an affidavit of Juliet Karumba, the advocate for the respondent. The application is oppossed vide replying affidavits of Thomas Ochieng Ogola, sworn on 18/5/2021 and replying affidavit sworn on 14/6/2021. The nub of the opposition is that the claimant could not obtain a hearing date for this suit since the Court Registry was not offering dates for suits filed after 2016. That all delays in securing a hearing date in this matter are wholly attributable to factors beyond the claimant’s or his advocate’s control.
2. That this cause was filed on 19/12/2018, and on the scheme of things considering the backlog of Employment and Labour Relations Court (Nairobi), there has been no inordinate delay to prosecute the suit.
3. That the application lacks merit and it be dismissed.
Determination
4. The Court has considered this matter and in particular that Employment and Labour Relations Court Nairobi, has been issuing hearing dates in respect of matters filed in the year 2016 and 2017. This is now a notorious fact, that this Court does take judicial notice of.
5. The Court is not satisfied that the claimant has willfully and or negligently failed to secure a hearing date for this matter. Indeed, applications of this nature which fail to take into consideration the prevailing back log reality at the Court only help to add to the backlog of the Court by loading judicial officers with extra rulings to make.
6. In the final analysis the applicant has failed to demonstrate that the application to dismiss this suit for want of prosecution has any merit. The same is dismissed with costs in the cause. Hearing date to be allocated for this suit upon delivery of the ruling.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 30TH DAY OF SEPTEMBER, 2021.
MATHEWS N. NDUMA
JUDGE
Appearances
MMW & company Advocates for the Respondent/Applicant
Ochieng Ogola & Co. Advocates for Claimant/Respondent
Ekale – Court Assistant