[2020] KEELRC 89 (KLR)
The court found that the applicant failed to provide any justifiable reason for the prolonged inaction in prosecuting the suit, both during the period when his advocate was ill and after the advocate's death. No steps were taken by the applicant personally, and the application to set aside the dismissal was filed...
Source-derived case information.
- Citation
- [2020] KEELRC 89 (KLR)
- Parties
- Applicant: Paul Jura Opapa; Respondent: Kenya Ordinance Factories Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 73 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Court Discretion, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Jura Opapa
Applicant
Kenya Ordinance Factories Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the applicant has provided sufficient reason to set aside the order dismissing the suit for want of prosecution.
- 2 Whether the court should exercise its discretion to reinstate the suit after prolonged inaction by the claimant.
Ratio Decidendi
The court found that the applicant failed to provide any justifiable reason for the prolonged inaction in prosecuting the suit, both during the period when his advocate was ill and after the advocate's death. No steps were taken by the applicant personally, and the application to set aside the dismissal was filed more than a year after the suit was dismissed. The court held that the suit had abated and that the applicant's conduct did not warrant the exercise of the court's discretion to reinstate the matter. The dismissal and closure of the file were necessary to promote judicial efficiency and decongest the court system. Accordingly, the application to set aside the dismissal was found...
Court Disposition
application dismissed
Orders
- The application to set aside the order dismissing the suit for want of prosecution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 73 OF 2014
PAUL JURA OPAPA..........................................CLAIMANT/APPLICANT
VERSUS
KENYA ORDINANCE FACTORIES CORPORATION...RESPONDENT
RULING
1. The applicant brought application dated 13/8/2019 seeking an Order to set aside the Order of the Court made on 12/3/2018 dismissing the suit for want of prosecution.
2. The claimant/applicant bases the application on the ground that his advocate on record was terminally ill from May, 2015, until he died on 2/7/2018.
3. The applicant did not give any reason in the application why he failed to take any step in person in the matter that was filed on 10/4/2014 for a period of four (4) years until the matter was dismissed by the Court on 12/3/2018 for want of prosecution.
4. As at the time the matter was dismissed not a single step was taken in the matter other than the filing itself and filing of list of documents on 16//4/2014.
5. A notice of change of Advocates was filed on 21/8/2019 more than a year after the matter was dismissed and this application itself was filed on 21/8/2019 on the same date more than a year after the matter was dismissed.
6. The applicant has proffered no justifiable reason why the Court should exercise its discretion to reinstate the matter. In any event the application is opposed by the respondent vide the replying affidavit of Samuel Mwaura Mburu the Legal Officer of the respondent and in the written submissions and indeed no summons were taken out at all by the claimant in this matter upon filing of the suit which aggravates the failure by the claimant to prosecute the suit at all.
7. As per the case of Abdulbasit Mohamed Dahman & Another –vs- Fidelity Commercial Bank Limited (2016) eKLRthis suit had abated already.
8. The dismissal of the suit and closure of the file served to cement the position so as to decongest the Court system.
9. The application lacks merit and is dismissed with no Order as to costs.
Dated and delivered at Nairobi this 17th day of December, 2020.
MATHEWS N. NDUMA
JUDGE
ORDER
In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
MATHEWS N. NDUMA
JUDGE
Appearances
Mr. Green for Claimant
Mr. Klachira for Respondent
Chrispo- Court clerk.