[2020] KEELRC 773 (KLR)
The Court found that the Claimant had been indolent by failing to take any steps to prosecute the Cause or seek extension of the injunctive order after its statutory lapse. While acknowledging systemic delays in scheduling hearings for 2017 cases, the Court held that this did not excuse the Claimant's inactivity....
Source-derived case information.
- Citation
- [2020] KEELRC 773 (KLR)
- Parties
- Applicant: Philip Theuri; Respondent: National Police Service Commission; Respondent: Inspector General of Police
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 142 of 2017
- Procedural Posture
- Employment Cause / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- Injunctive orders discharged; Cause not dismissed; costs in the cause.
- Judges
- MSA Makhandia
- Legal Topics
- Dismissal for Want of Prosecution, Injunctive Relief, Delay in Prosecution
- 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
Philip Theuri
Applicant
National Police Service Commission
Respondent
Inspector General of Police
Respondent
Procedural Posture
Employment Cause / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the Cause should be dismissed for want of prosecution due to the Claimant's inordinate delay.
- 2 Whether the injunctive orders restraining the Respondents should be discharged after prolonged inactivity.
Ratio Decidendi
The Court found that the Claimant had been indolent by failing to take any steps to prosecute the Cause or seek extension of the injunctive order after its statutory lapse. While acknowledging systemic delays in scheduling hearings for 2017 cases, the Court held that this did not excuse the Claimant's inactivity. Rather than dismissing the Cause outright, the Court exercised its discretion to discharge the injunctive orders that had been in place for over three years, as the Claimant had not justified their continued existence or taken steps to progress the matter.
Court Disposition
Injunctive orders discharged; Cause not dismissed; costs in the cause.
Orders
- The injunctive orders given on 27 January 2017 and extended on 18 October 2017 are discharged.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 142 OF 2017
PHILIP THEURI................................................................CLAIMANT
VERSUS
NATIONAL POLICE SERVICE COMMISSION.....RESPONDENT
INSPECTOR GENERAL OF POLICE................2nd RESPONDENT
RULING
1. On 4 March 2020, the Inspector General of Police filed a motion seeking an order that the Cause be dismissed for want of prosecution.
2. The primary grounds/reasons advanced in support of the application were that despite obtaining interim orders, the Claimant had failed to take any steps to prosecute the Cause from 28 November 2017 and therefore there had been an inordinate delay and that the Respondents stood to be prejudiced by the delayed prosecution of the Cause.
3. When the application was placed before the Court on 12 May 2020, it directed the parties to file and exchange responses and submissions.
4. The Claimant filed his replying affidavit on 15 June 2020 (should have been filed and served before 9 June 2020).
5. The Respondents filed their submissions electronically on 18 June 2020 (should have been filed/served before 26 May 2020).
6. The Court has considered the material on record.
7. The Claimant, a Police Officer, secured an order restraining the Respondents from deploying him to a Police Station within Taita Taveta on 27 January 2017.
8. On 28 March 2017, the parties requested the Court to allow them to attempt out of court settlement, but there is nothing on record to show what happened to the negotiations.
9. It is not in doubt that the Claimant has been enjoying an injunctive order for over 3 years.
10. In terms of Order 40 Rule 6 of the Civil Procedure Rules, such an injunction automatically lapses after 1 year, unless the Court determines otherwise.
11. The Claimant has not moved the Court to give any directions on the extension of the injunctive order after the lapse of the 1 year. He has also not taken any steps to prosecute the Cause. He has been indolent.
12. The Court is, of course, aware as should the parties, that suits filed in 2017 have not been scheduled for hearing due resource constraints. But that should not excuse the indolence on the part of the Claimant.
13. In lieu of dismissing the Cause, the Court will discharge the injunctive orders given on 27 January 2017 and extended on 18 October 2017.
14. Costs in the cause.
Delivered through Microsoft teams/email, dated and signed in Nairobi on this 19th day of June 2020.
Radido Stephen
Judge
Appearances
For Claimant Wokabi Mathenge & Co. Advocates
For 1st Respondent Paul Ojwang, Litigation Counsel, National Police Service Commission
For 2nd Respondent Wangeci Gichangi, Senior State Counsel, Office of the Attorney General
Court Assistant Judy Maina