[2023] KEELRC 2406 (KLR)
The court found that both parties exhibited laxity in prosecuting the claim, sharing responsibility for the delay. However, the court held that sustaining the claim would not prejudice either party and would serve the ends of justice, emphasizing the fundamental right to a hearing. The delay was deemed unintentional...
Source-derived case information.
- Citation
- [2023] KEELRC 2406 (KLR)
- Parties
- Applicant: Imaana Silas Mwithali; Respondent: One Residence Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1154 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application for dismissal declined
- Judges
- DKN Marete
- Legal Topics
- Dismissal for Want of Prosecution, Right to Be Heard, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Imaana Silas Mwithali
Applicant
One Residence Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity by the claimant.
- 2 Whether the delay in prosecuting the claim is excusable or prejudicial to the respondent.
- 3 Whether the right to a hearing outweighs procedural delays in this context.
Ratio Decidendi
The court found that both parties exhibited laxity in prosecuting the claim, sharing responsibility for the delay. However, the court held that sustaining the claim would not prejudice either party and would serve the ends of justice, emphasizing the fundamental right to a hearing. The delay was deemed unintentional and excusable, and the application for dismissal was declined. Each party was ordered to bear its own costs.
Court Disposition
application for dismissal declined
Orders
- The application to dismiss the suit for want of prosecution is declined.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
25 paragraphs
Mwithali v One Residence Limited (Cause 1154 of 2018) [2023] KEELRC 2406 (KLR) (3 October 2023) (Ruling)
Neutral citation: [2023] KEELRC 2406 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1154 of 2018
DKN Marete, J
October 3, 2023
Between
Imaana Silas Mwithali
Claimant
and
One Residence Limited
Respondent
Ruling
1. This is an application dated July 20, 2022 and seeks the following orders of court;1. That this Honourable Court be and is hereby pleased to dismiss this suit for want of prosecution.2. That the costs of this application and the entire suit be awarded to the Respondent/Applicant.
2. It is grounded on the basis that the claimant has not prosecuted his matter one year down the line since the last appearance in court.
3. No motion whatsoever has been forthcoming since the July 26, 2021 when it last appeared in court.
4. The Respondent/Applicant in her written submissions dated written submission outlines and narrates a summary of the background of the issues relied on and reiterates her case dismissal for want of prosecution.
5. The Claimant/Respondent in a Replying Affidavit sworn on November 11, 2022 opposes the application. He expresses as follows;4. That the dates as indicated by the Respondent/Applicant in terms of issuance of directions are accurate save to add that the Respondent/Applicant was to file and serve its response within 14 days which service is yet to be effected.5. That the Claimant/Respondent is desirous of prosecuting the matter and having the same determined on merit.6. That vide a request received on the March 24, 2022, the firm sought to have the matter set down for hearing. Attached hereto and marked as “NMIa&b” is a copy of the letter and court receipt.7. That the request did not bear any fruits as there was not positive response from the registry as the matter was not set down for hearing.8. That the perceived delay in prosecuting the Claim is unintentional and excusable, and the Claimant/Respondent is willing to prosecute his suit and the Respondent/Applicant in question does not stand to suffer any prejudice.
6. The Respondent/Applicant in her undated submissions reiterates her case and prays that this application be upheld and a dismissal of the claim be had.
7. The claimant/Respondent does not furnish written submission or at all.
8. Overall, one realizes and notes laxity on both parties to this suit. They share the blame of relaxing in the prosecution of the claim.
9. Again, a sustenance of the claim would not prejudice any of the parties but serve the ends of justice. This is bearing in mind that the right to a hearing is a fundamental and a basic right that cannot be taken for granted.
10. I am therefore declined to dismiss application with orders that each party bears their cost of the same.
DELIVERED, DATED AND SIGNED THIS 3RD DAY OF OCTOBER 2023. D.K. NJAGI MARETEJUDGE