[2019] KEELRC 1213 (KLR)
The court found that the claimant did not receive the notice to show cause in time to attend the hearing and explain the delay in prosecuting the suit. The evidence was undisputed that the notice reached the claimant after the dismissal order had already been made. The court held that dismissal for want of...
Source-derived case information.
- Citation
- [2019] KEELRC 1213 (KLR)
- Parties
- Claimant: Newton Makutwa; Respondent: Makokha Odende Godrick; Respondent: Kabaka Permenas Oendo; Respondent: Wilfred Bosire; Respondent: John Owino; Respondent: Teachers Service Commission; Respondent: Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 158 of 2013
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application to set aside dismissal granted
- Judges
- MN Nduma
- Legal Topics
- Unlawful Dismissal, Want of Prosecution, Setting Aside Orders, Service of Process
- 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
Newton Makutwa
Claimant
Makokha Odende Godrick
Respondent
Kabaka Permenas Oendo
Respondent
Wilfred Bosire
Respondent
John Owino
Respondent
Teachers Service Commission
Respondent
Attorney General
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the claimant was denied a fair opportunity to show cause due to late receipt of notice.
- 3 Whether the delay in prosecuting the suit was excusable.
Ratio Decidendi
The court found that the claimant did not receive the notice to show cause in time to attend the hearing and explain the delay in prosecuting the suit. The evidence was undisputed that the notice reached the claimant after the dismissal order had already been made. The court held that dismissal for want of prosecution requires that parties be given notice and an opportunity to be heard, as established in relevant case law and procedural rules. The court exercised its discretion to set aside the dismissal order, finding the application meritorious. However, the court directed the claimant to set the suit down for hearing on the date of the ruling, warning that failure to prosecute on the...
Court Disposition
application to set aside dismissal granted
Orders
- The order dismissing the suit for want of prosecution is set aside.
- The claimant is directed to set the suit down for hearing on the date of this ruling.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 158 OF 2013
(Before Hon. Justice Mathews N. Nduma)
NEWTON MAKUTWA.............................................................................CLAIMANT
VERSUS
MAKOKHA ODENDE GODRICK.............................................1ST RESPONDENT
KABAKA PERMENAS OENDO.................................................2ND RESPONDENT
WILFRED BOSIRE......................................................................3RD RESPONDENT
JOHN OWINO..............................................................................4TH RESPONDENT
TEACHERS SERVICE COMMISSION......................................5TH RESPONDENT
ATTORNEY GENERAL...............................................................6TH RESPONDENT
RULING
1. The suit was filed on 13th June 2013 seeking compensation for unlawful dismissal from employment, costs and interest.
2. Statement of defence was filed on 27th February 2014 by the 1st, 3rd and 5th respondents.
3. Notice of Motion dated 8th July 2015 was filed on 8th July 2015 seeking to serve 2nd and 4th respondents by substituted service. The application was granted on 27th October 2016.
4. Notice to show cause why the suit should not be dismissed for want of prosecution was issued by the Deputy Registrar on 14th May 2018. The same was served on both parties. The Notice to show cause was set for hearing on 6th June 2018. None of the parties attended court and the court noted that the last step in the matter was taken on 27th October 2016 and dismissed the suit for non-prosecution.
5. Application dated 10th October 2018 and filed on 18th October 2018 seeks to set aside the order dismissing the suit for want of prosecution in terms of Sections 3A and 63 (e) of the Civil Procedure Act and order 10 rule 11, order 17 rules 2 and order 51 rule 1 of the Civil Procedure rules.
6. The application is on the grounds set out on the face of the application that the delay in setting the claim down for hearing was caused by the non-availability of some defendants to be personally served with summons. That the claimant was unable to raise funds in good time to pay for the ordered newspaper advertisement.
7. That the claimant intends to withdraw the suit against the respondents who have so far not been served and therefore not entered appearance and fix it for hearing.
8. That the notice to show cause reached counsel for the claimant after the court had made its orders.
9. The application is further supported by the affidavit by advocate Moses Wanyama for the claimant.
10. M/S Kaluai for the 1st, 3rd and 5th respondents filed grounds of opposition to the application to wit that the application is bad in law, frivolous, vexatious and is a gross abuse of the court process.
11. That the application violates the spirit of Section 3 of the Employment Act and the overriding objective of administrative of justice.
12. That the applicant is guilty of unreasonable and in excusable delay in prosecuting this matter. That the respondent will suffer great prejudice as it may not be able to trace any witnesses to defend this matter. The application comes more than five years since the cause of action arose.
13. The claimant relies on the case of Eunice Soko Mlagui vs Suresh Parume and others (2010) eKLR in which Justice Maureen A. Odero cited with approval the case of Kenya power and lighting company limited vs Kenya Cold Storage 1964 Limited HCCC NO. 387 of 2002 in which Hon. Lady Justice Hannah Okwengu (as she then was) held as follows.
“Nevertheless dismissal of a suit under OXVI Rule 2(1) of the Civil Procedure rules requires that notice be given to the parties to appear before the court to show cause why the suit should not be dismissed before any order of dismissal is made”.
14. In the present case the undisputed evidence is that the claimant received the notice to show cause after the date the claimant was meant to show cause on 6th June 2018 when the order for dismissal was granted in the absence of both parties.
15. Accordingly, the application to set aside is meritorious and same is granted. However, the claimant is directed to cause the suit to be set down for hearing on the date of this ruling and the claimant shall prosecute the matter on the date set by the court failing which the suit will stand dismissed for want of prosecution unless the lack of prosecution on such set date is not attributed to the claimant. Costs in the cause.
Ruling Dated, Signed and delivered this 8thday of July, 2019.
Mathews N. Nduma
Judge
Appearances
Mr. Wanyama for the claimant
M/S Kaluai for the Respondent
Chrispo – Court Clerk