[2021] KEELRC 225 (KLR)
The court found that the delay in prosecuting the suit was not attributable to the claimant but rather to systemic issues within the Employment and Labour Relations Court, including prioritization of older cases and disruptions caused by the COVID-19 pandemic. The court accepted evidence that the registry was not...
Source-derived case information.
- Citation
- [2021] KEELRC 225 (KLR)
- Parties
- Claimant: Dr. Norah Akongo Obudho; Respondent: Planned Parenthood Federation of America (PPFA)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 712 of 2019
- 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, Right to Fair Hearing, Court Backlog, Covid 19 Impact on Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Norah Akongo Obudho
Claimant
Planned Parenthood Federation of America (PPFA)
Respondent
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 is attributable to the claimant or to systemic court backlog and COVID-19 disruptions.
- 3 Whether dismissal of the suit would violate the claimant's right to a fair hearing under Article 50 of the Constitution.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not attributable to the claimant but rather to systemic issues within the Employment and Labour Relations Court, including prioritization of older cases and disruptions caused by the COVID-19 pandemic. The court accepted evidence that the registry was not fixing hearing dates for 2019 matters and that the claimant had made attempts to progress the case. Dismissing the suit under these circumstances would unjustly penalize the claimant and violate the right to a fair hearing as enshrined in Article 50 of the Constitution. Therefore, the application for dismissal for want of prosecution was found to lack merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed with costs in the cause.
- The matter shall be given directions for hearing upon delivery of this ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE N0. 712 OF 2019
DR. NORAH AKONGO OBUDHO..................................CLAIMANT
VERSUS
PLANNED PARENTHOOD FEDERATION
OF AMERICA (PPFA)..................................................RESPONDENT
RULING
1. The applicant seeks an order that:-
(a) This suit be dismissed for want of prosecution.
(b) Costs of the suit.
2. The application is premised on grounds set out on the face of the application and in the supporting affidavit of Mr. Kumiki Gibson, the General Counsel for the respondent the gravamen of which is that the claimant filed suit against the respondent on 24th October, 2019 and the Respondent filed a statement of response on 25th November, 2019.
3. That the claimant filed supplementary witness statement on 4th February, 2020 and has since not taken any steps to fix the matter for pre-trial conference.
4. That the claimant has failed to take any action to prosecute the claim for over one (1) year and the same be dismissed for want of prosecution.
5. The claimant/respondent filed a replying Affidavit of Fredrick Okeyosworn on 23rd June, 2021 in which the advocate states that the respondent has attempted to fix the suit for hearing but was informed by the Court that only matters filed in the year 2016 were being fixed for hearing.
6. The respondent, annexed annexture ‘A’ to the replying affidavit which is a notice from the Court to the litigants communicating the aforesaid message.
7. The parties filed written submissions dated 15th September, 2021 and 20th September, 2021 respectively.
8. The Court has considered the depositions by the parties, the written submissions and the Court record in this matter and is satisfied that, the applicant has not adduced any and or any sufficient evidence to demonstrate that the claimant herein has failed and/or refused to prosecute this suit.
9. The suit was filed on 24th October, 2019, and a response filed on 25th November, 2019. That the claimant filed supplementary witness statement on 4th February, 2020 a time when COVID – 19 pandemic afflicted the world including Kenya. That the Court is satisfied from annexture ‘A’ to the replying affidavit that the Employment and Labour Relations Court at Milimani Commercial Courts has not been fixing dates for matters filed in the year 2019, due to the backlog of the Court which it has embarked to clear giving priority to matters filed in the period 2015 to 2018.
10. The reality of the situation at the Employment and Labour Relations Court at Nairobi deems this particular matter not to have experienced inordinate delay in its prosecution.
11. Dismissal of this matter without hearing the parties would in the circumstance’s deny justice to the claimant and violate his rights under Article 50 of the Constitution of Kenya, 2010, which is the right to a fair hearing.
12. Accordingly, the application lacks merit and is dismissed with costs in the cause. The matter shall be given directions for the hearing of the suit upon delivery of this ruling.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 9TH DAY OF DECEMBER, 2021.
Mathews N. Nduma
Judge
Appearances:-
M/s Moka for Respondent/Applicant
Mr. Kero for Claimant
Ekale – Court clerk.