[2023] KEELRC 2866 (KLR)

Railways & Allied Workers Union (K) v Rift Valley Railways (K) Limited (Cause 949 of 2012) [2023] KEELRC 2866 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2866 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 949 of 2012

MA Onyango, J

November 10, 2023

Between

The Railways & Allied Workers Union (K)

Claimant

and

Rift Valley Railways (K) Limited

Respondent

Ruling

1. The suit herein was dismissed for want of prosecution on 6th April 2017.

2. Vide an application dated 1st July 2020 the Claimant seek the following orders: -i.That the order made on 6/4/2017 by the Hon. Justice Matthews Nduma Nderi dismissing the Claimant’s case for want of prosecution be set aside and the suit be reinstated for hearing.ii.That the deceased Claimants Oduor Onyango Alias Charles Oduor Onyango and Justus Morara Nyarangi be substituted by their widows namely Clarice Atieno Ogindo and Ruth Kemunto Bosire respectively.iii.That the suit be accorded an early hearing date on priority basisiv.That the cost of this application be borne by the Respondent.

3. The application is supported by the 7 grounds set out at the foot of the application. Briefly, they are that the Claimant’s case was dismissed for want of prosecution despite the Claimant having interest in pursuit of justice, to prosecute the suit. That the union was representing the six Claimants. That since the claims were based on redundancy they were consolidated. That the lead Claimant is one of two deceased claimants. That after the demise of the two Claimants the matter was put in abeyance to await the substitution of the two deceased Claimants.

4. It is further stated in the grounds that the deceased Claimants widows obtained letters of administration on 3rd June 2020 and the Claimants are willing and ready to prosecute this matter without further delay. The Applicants state that non-attendance of Court by a union official during the Notice to Show Cause on 6th April 2017 is unknown to the Claimants.

5. The Respondent filed a Replying Affidavit sworn by Grishon Thuo, the Respondent’s counsel in conduct of this matter. He deponed that the suit was filed before the Industrial Court on 5th June 2012 and that it would be against public interest and overriding objectives of this court if such an old case was to be reinstated. He deponed that the matter came up in court on 15th March 2013 and 13th May 2013 when the court directed the Claimant to comply with pretrial steps but the Claimant did not comply.

6. Counsel further deponed that the Claimant did not take any further steps to prosecute its case between 13th May 2013 and 6th April 2017 and consequently, the court issued a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The notice was scheduled for hearing on 6th April, 2017 which notice was duly served upon the Claimant.

7. According to the deponent, the suit was dismissed on the 6th April 2017 after the Claimant failed to attend court or to swear an affidavit to explain why it had left its suit unprosecuted for almost 5 years.

8. It is the Respondent’s case that the current application which was filed on or about 1st July 2020, is about 3 years and 3 months after the dismissal order was made. That the delay is inordinate and has not been explained at all.

9. The Respondent further avers that despite filing the application on 1st July 2020, the Claimant did not serve the same upon the Respondent until 7th May 2021 and that the delay in serving the application is consistent with the Claimant’s lethargic attitude as exhibited in this matter over the last 9 years.

10. The Respondent has contended that the Claimant has not given any credible reason for its failure to prosecute the suit herein expeditiously.

11. It is the Respondent’s further contention that reinstating the suit herein would occasion immense prejudice to the Respondent as at the time the suit was filed, the Respondent was doing business in Kenya under a Concession Agreement entered between it on one hand and Kenya Railways Corporation and the Government of Kenya on the other hand. That the said Concession Agreement was terminated on 31st July 2019 vide a court order issued in Milimani HCCC No. 136 of 2017, Rift Valley Railways Kenya Limited vs Kenya Railways Corporation & Another. That as a result, the Respondent ceased conducting its business operations in Kenya and has neither offices nor employees in Kenya currently and that if the suit is reinstated, the Respondent will be unable to secure the relevant documents and witnesses to defend itself.

12. The Claimant filed a further affidavit sworn by Lawrence W. Weramondi 6th July 2021 in response to the Respondent’s replying affidavit. The said Mr Weramondi introduced himself as one of the Grievants and averred that the Grievants learned about the Union’s failure to protect their interests after severally visiting the Claimant’s office.

13. He stated that the negligent actions of the union should not be visited on them as it would amount to denying them the right to be heard which would in turn lead to depriving them the rightful compensation due to them which their other colleagues have already had the benefit of.

14. The application was canvassed by way of written submissions. Both parties filed submissions which I have considered.

15. The Grievants in this case fault the Claimant for failing to prosecute this matter conclusively leading to the dismissal of the suit for want of prosecution.

16. In as much as I sympathize with the Grievants, I fail to understand why for all these years they did not follow up on their case with the Union to know the progress.

17. I have also noted from the copies of the letters of administration annexed to the instant application that two of the Grievants in this case, namely Justus Morara Nyarangi and Oduor Onyango alias Charles Oduor Onyango are deceased having passed on way back on 6th December 2014 and 14th May 2015 respectively, long before the suit was dismissed for want of prosecution. No action was taken until over 3 years later.

18. Equity aids the vigilant and not the indolent. In the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C. (31st Edition) at page 99:“The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”

19. Further, as pointed out by counsel for the Respondent, the Respondent no longer carries on business in Kenya following the termination of its concession agreement upon which it was doing business in Kenya. Counsel states it no longer has offices in Kenya. This means that the circumstances of the parties have changed to the extent that the Respondent may no longer be in a position to defend the suit for want of witnesses and documents.

20. It is doubtful therefore if any benefit will be achieved by the reinstatement of the suit in view of the abatement of the suits against the deceased Grievants and the changed circumstances of the Respondent.

21. The Applicant has also not sufficiently justified the reasons for the delay in filing the application or failure to attend court to respond to the notice to show cause. Flowing from the above, I do not think that this court can come to the aid of the Grievants at this point as the application was brought very late in the day.

22. The application dated 1st July 2020 is accordingly dismissed. There shall be no orders as to costs.

DATED, DELIVERED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER, 2023. M. ONYANGOJUDGE