[2021] KEELRC 2410 (KLR)
The court found that the claimant failed to take any steps to prosecute the suit for over one year after filing, despite being served with the application for dismissal and being granted time to respond. No reasonable cause was shown for the delay. The respondent had complied with procedural requirements by filing a...
Source-derived case information.
- Citation
- [2021] KEELRC 2410 (KLR)
- Parties
- Claimant: Naushad Sap; Respondent: Multi Tools (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1444 of 2017
- Procedural Posture
- Employment Claim / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution; costs awarded to respondent
- Legal Topics
- Dismissal for Want of Prosecution, Procedural Delay, Court Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naushad Sap
Claimant
Multi Tools (K) Limited
Respondent
Procedural Posture
Employment Claim / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
- 2 Whether the claimant has shown reasonable cause for the delay in prosecuting the suit.
- 3 Whether costs should be awarded to the respondent.
Ratio Decidendi
The court found that the claimant failed to take any steps to prosecute the suit for over one year after filing, despite being served with the application for dismissal and being granted time to respond. No reasonable cause was shown for the delay. The respondent had complied with procedural requirements by filing a response and witness statements. The court exercised its discretion under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016, and determined that the suit should be dismissed for want of prosecution. Costs were awarded to the respondent.
Court Disposition
suit dismissed for want of prosecution; costs awarded to respondent
Orders
- The suit is dismissed for want of prosecution pursuant to Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
- Costs are awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT
NAIROBI
CAUE NO.1444 OF 2017
NAUSHAD SAP..........................................................CLAIMANT
VERSUS
MULTI TOOLS (K) LIMITED...........................RESPONDENT
RULING
The respondent, Multi Tools (K) Limited filed application dated 25th June, 2021 seeking orders that the suit be dismissed for want of prosecution and the claimant to pay costs.
The application is supported by the annexed affidavit of Muzna Jin and on the grounds that the claim herein was filed on 24th July, 2017 and the claimant has since not taken any steps to prosecute the same and the delay has caused the respondent great prejudice and the same should be dismissed with costs.
Ms Jin avers in the Supporting Affidavit that upon being served with the claim a response was filed on 2nd October, 2018 and since no steps have been taken to have the matter fixed for hearing and hence it should be dismissed for want of prosecution.
The claimant was served with the instant application on 6th October, 2021 and there is an Affidavit of Service sworn by Nicholus M Kimwele dated 24th November, 2021 to confirm service.
There was no response, a Replying Affidavit and on the appointed date for hearing on 8th November, 2021 the claimant’s advocate submitted that he was experiencing problems in filing a Replying Affidavit and was allowed 7 days to file the same and parties allowed time to file written submissions with regard to the application dated 25th June, 2021.
The claimant did not file the Replying Affidavit.
Only the respondent filed written submissions which have been put into account and the single issue for determination is whether the suit should be dismissed for want of prosecution.
Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (the Rules) allow a party to move the court seeking for the dismissal of the suit for want of prosecution where no action has been taken within one year from the date of filing suit.
16. (1) In any suit in which no application has been made in accordance with Rule 15 or no action has been taken by either party within one year from the date of its filing, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed and if no reasonable cause is shown to its satisfaction, may dismiss the suit.
The claimant was allowed time to reply to the instant application and show reasonable cause as to why the suit has not been prosecuted for a period of over one year save there is no reply and the court finds no good cause to keep this suit alive.
The respondent has moved the court for good cause and taken account of the date of filing the suit, a response has since been filed and witness statements filed and served yet the claimant has not seen any good reason to set the matter down for hearing.
Accordingly, application dated 25thJune, 2021 is found with merit. The suit is hereby dismissed for want of prosecution pursuant to Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016. Costs awarded to the respondent.
DELIVERED IN COURT AT NAIROBI THIS 20THDAY OF DECEMBER, 2021.
M. MBAR?
JUDGE
In the presence of:
Court Assistant: Okodoi
……………………………………………… and ……………………………………..