[2016] KEELRC 282 (KLR)
The court found that the applicant, despite the application being certified as urgent, failed to serve the respondents within the time directed by the court and did not provide any evidence of service even after being granted additional time. The applicant's inaction and lack of diligence in prosecuting the urgent...
Source-derived case information.
- Citation
- [2016] KEELRC 282 (KLR)
- Parties
- Applicant: Paul Kiprop Chepkuto; Respondent: University Council, Moi University; Respondent: Prof. J. Kinyamario; Respondent: Moi University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 443 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Interim Relief
- Outcome
- application dismissed for want of prosecution and abuse of process
- Judges
- MSA Makhandia
- Legal Topics
- Interlocutory Injunctions, Compulsory Leave, Suspension From Employment, Reinstatement, Urgent Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kiprop Chepkuto
Applicant
University Council, Moi University
Respondent
Prof. J. Kinyamario
Respondent
Moi University
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Interim Relief
Legal Issues
- 1 Whether the applicant is entitled to interim orders suspending his suspension and compulsory leave from employment.
- 2 Whether the applicant should be reinstated to his position pending determination of the suit.
- 3 Whether the applicant abused the court process by failing to serve the application despite certification of urgency.
Ratio Decidendi
The court found that the applicant, despite the application being certified as urgent, failed to serve the respondents within the time directed by the court and did not provide any evidence of service even after being granted additional time. The applicant's inaction and lack of diligence in prosecuting the urgent application rendered the urgency superfluous and amounted to an abuse of the court process. Consequently, the court exercised its discretion to dismiss the application for want of prosecution and failure to comply with court directions, with no order as to costs.
Court Disposition
application dismissed for want of prosecution and abuse of process
Orders
- The motion dated 1 November 2016 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 443 OF 2016
PAUL KIPROP CHEPKUTO…………………………….…CLAIMANT
v
UNIVERSITY COUNCIL, MOI UNIVERSITY…....1ST RESPONDENT
PROF. J. KINYAMARIO…….……………….…...2ND RESPONDENT
MOI UNIVERSITY………………………….…….3RD RESPONDENT
RULING
1. Paul Kiprop Chepkuto (applicant) moved Court through a motion under certificate of urgency on 1 November 2016 seeking
1. THAT this application be certified as urgent and be heard on priority basis.
2. THAT pending the inter parties hearing and determination of the application herein, this Honourable Court be pleased to issue a temporary order suspending the implementation of the 2nd Respondents letter dated 13th October 2016 in toto suspending the Applicant/Claimant from the Office of the Deputy Vice Chancellor Administration, Planning and development and slashing his salary by half.
3. THATpending the inter parties hearing and determination of the application herein, this Honourable Court be pleased to issue a temporary order suspending the implementation of the 2nd Respondents letter dated 1st September 2016 in toto sending the Claimant on compulsory leave from the Office of the Deputy Vice Chancellor Administration, Planning and development and slashing his salary by half.
4. THAT Applicant/Claimant be and is hereby reinstated back to his office and station of Employment as the Deputy Vice Chancellor, Administration, Planning and development pending the hearing and determination of this suit.
5. THATthe court be pleased to bar any other appointment as the Deputy Vice Chancellor, Administration, Planning and Development pending the hearing and determination of this suit.
6. THAT the 1st and 2nd Respondents be henceforth restrained either by themselves, their agents or servants from interfering with the Claimant/Applicant in his discharge of duties otherwise than is provided by law.
7. THATthe Applicant/Claimant continues enjoying all rights and privileges as prescribed under his office.
8. THAT the costs of this application be provided for.
2. The Court certified the motion as urgent on 1 November 2016 and directed that the Respondents be served for an inter partes hearing on 14 November 2016.
3. When the motion was called out for hearing on 14 November 2016, the counsel for the applicant informed the Court that the motion had not been served upon the Respondents.
4. The Court consequently adjourned the motion to 23 November 2016 and directed the applicant to serve it and also pay adjournment fees.
5. 23 November 2016, the applicant was not in Court at 9. 10 am when the motion was called out and the Court placed the file aside.
6. The applicant’s counsel appeared in Court at 10. 10 am and she informed the Court that the motion had been served but that because she did not have proof of service she was seeking for a mention date to enable an affidavit of service to be filed.
7. The Court directed that it would deliver a ruling on the request today.
8. The applicant was given about 14 days at the first instance to serve the motion which had been certified as urgent but for unexplained reasons service was not effected.
9. The Court added the applicant another 10 or so days to effect service but on the new return date, there was no evidence of service.
10. In total, the applicant had about 23 days to effect service but no service or evidence of service was presented in Court.
11. The Court can therefore conclude that the applicant is not interested in having the motion which was certified urgent heard expeditiously.
12. The principle of certifying the motion urgent has therefore become not only superfluous but the inaction of the applicant renders itself to abuse of the court process.
13. The Court therefore dismisses the motion dated 1 November 2016 with no order as to costs.
Delivered, dated and signed in Nakuru on this 25th day of November 2016.
Radido Stephen
Judge
Appearances
For applicant Ms. Wangeci instructed by Musyoki Mogaka & Co. Advocates
Respondents not served
Court Assistants Nixon/Daisy