[2019] KEELRC 103 (KLR)
The court found that the delay in prosecuting the claim was not inordinate or inexcusable given the prevailing jurisdictional uncertainty regarding work injury claims, which was acknowledged by the Supreme Court. The court held that it would be unjust to fault the claimant for not proceeding with the claim while the...
Source-derived case information.
- Citation
- [2019] KEELRC 103 (KLR)
- Parties
- Claimant: Nyamai Kisangau; Respondent: Diamond Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 132 of 2017
- Procedural Posture
- Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Dismissal for Want of Prosecution, Work Injury Claims, Jurisdiction of Court
- 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
Nyamai Kisangau
Claimant
Diamond Industries Limited
Respondent
Procedural Posture
Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the claimant's suit should be dismissed for want of prosecution due to delay in taking steps to prosecute the claim.
- 2 Whether the delay in prosecuting the claim is excusable in light of jurisdictional uncertainty regarding work injury claims.
Ratio Decidendi
The court found that the delay in prosecuting the claim was not inordinate or inexcusable given the prevailing jurisdictional uncertainty regarding work injury claims, which was acknowledged by the Supreme Court. The court held that it would be unjust to fault the claimant for not proceeding with the claim while the legal position on jurisdiction was unsettled. Consequently, the respondent's application to dismiss the claim for want of prosecution was declined.
Court Disposition
application dismissed
Orders
- The respondent's application dated 17th April 2019 is declined.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 132 OF 2017
NYAMAI KISANGAU.......................................CLAIMANT
VS
DIAMOND INDUSTRIES LIMITED.........RESPONDENT
RULING
1. By its application brought by Notice of Motion dated 17th April 2019, the Respondent asks that the Claimant’s claim be dismissed for want of prosecution.
2. The application is premised on the ground that more than two years have elapsed since the case was filed, with no action being taken by the Claimant. The Respondent therefore maintains that the Claimant has lost interest in pursuing the claim.
3. In his affidavit in support of the application, the Respondent’s Counsel Azmina Husein Amarshi, Advocatedepones that the claim was filed on 16th February 2017. The Respondent subsequently filed its Reply on 3rd March 2017.
4. Counsel further depones that since filing his claim on 16th February 2017, the Claimant had not listed it either for pre-trial conference or for hearing.
5. The Respondent’s position is that the delay occasioned herein is inordinate and prejudicial to the Respondent.
6. The Claimant’s response is contained in a replying affidavit sworn by his Counsel, P. Cynthea Onyango, Advocate on 10th May 2019. Counsel concedes that the claim herein was filed on 16th February 2017 and that the Respondent had filed his Response on 3rd March 2017.
7. She however denies the averment that the Claimant had not taken any steps towards prosecuting the matter. She states that the Claimant had on several occasions invited the Respondent to fix the matter for hearing but the Respondent had never shown up.
8. Further, this being a work injury claim, the Respondent had held the position that this Court is not seized of original jurisdiction to preside over it.
9. Counsel discloses that she had advised her client of the uncertainty arising from:
a. Civil Appeal No 133 of 2011: Attorney General v Law Society of Kenya & Central Organisation of Trade Unions in which the Court of Appeal had rendered judgment on 17th November 2017;
b. High Court Petition No 196 of 2018 filed on 24th July 2018 and orders emanating therefrom.
10. The Claimant’s Counsel takes the position that the matter ought to await finality on the issue of jurisdiction.
11. At the time of writing this ruling, the Supreme Court had rendered its decision in Petition No 4 of 2019: Law Society of Kenya v The Attorney General and Central Organisation of Trade Unions. While pronouncing itself with finality, on the issue of jurisdiction with regard to work injury claims, the Supreme Court took judicial notice of the confusion occasioned by previous judicial pronouncements over this issue.
12. With the Apex Court in the land having recognised that there was indeed confusion in this area of law, this Court cannot now fault the Claimant for failing to proceed with his claim.
13. For this reason, the Respondent’s application dated 17th April 2019 is declined.
14. Each party will bear their own costs.
15. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 19TH DAY OF DECEMBER 2019
LINNET NDOLO
JUDGE
Appearance:
Miss Onyango for the Claimant
Mrs. Amarshi for the Respondent