[2021] KEELRC 1718 (KLR)
The court found that the delay in prosecuting the suit was not due to the claimants' inaction but was occasioned by the court's administrative backlog and the registry's inability to allocate hearing dates for matters filed in 2017. The respondents' advocate's explanation was unchallenged and corroborated by the...
Source-derived case information.
- Citation
- [2021] KEELRC 1718 (KLR)
- Parties
- Respondent: Samuel Muthuva Katiku; Respondent: Dennis Muturi Njoroge; Applicant: Texas Alarms (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 911 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Backlog, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Muthuva Katiku
Respondent
Dennis Muturi Njoroge
Respondent
Texas Alarms (K) Limited
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the claimants.
- 2 Whether the claimants were prevented from prosecuting the suit by circumstances beyond their control, specifically the court's failure to allocate hearing dates.
- 3 Whether the mandatory notice to show cause was served before seeking dismissal for want of prosecution.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not due to the claimants' inaction but was occasioned by the court's administrative backlog and the registry's inability to allocate hearing dates for matters filed in 2017. The respondents' advocate's explanation was unchallenged and corroborated by the court's own knowledge of the situation. Furthermore, the court noted that no notice to show cause had been served on the claimants, which is a mandatory procedural requirement before dismissal for want of prosecution. In light of these factors, the application to dismiss the suit lacked merit and was dismissed with costs in the cause.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed with 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. 911 OF 2017
SAMUEL MUTHUVA KATIKU...................................1ST CLAIMANT/RESPONDENT
DENNIS MUTURI NJOROGE....................................2ND CLAIMANT/RESPONDENT
VERSUS
TEXAS ALARMS (K) LIMITED..............................1ST RESPONDENT/APPLICANT
RULING
1. The Respondent/applicant filed notice of motion application on 11/8/2020 seeking for orders:-
(a) That this suit be dismissed for want of prosecution by theclaimants.
(b) That costs of this application be provided for.
2. The application is premised on grounds set out in the notice of motionapplication to wit, that since the institution of the case on the 16thMay, 2017, the matter has never been prosecuted and therefore the claimants are not interested in prosecuting their case. The application is buttressed by a supporting affidavit of Perez Odero the advocate on record for the respondent who deposes that it is almost four (4) years since the suit was filed and the claimants have failed to take tangible steps to prosecute the matter.
3. The applicant prays the suit be dismissed accordingly.
4. The respondents filed a replying affidavit of Mutua Muli, the advocateon record for the claimants who deposesinteraliathat the application ismisconceived and an abuse of Court process in that the claim was filed on 16/5/2017 and the respondent filed a defence on 10/7/2017 and thereafter matter was set for pre-trial on 13/11/2017. Both parties attended and the suit was certified ready for hearing. The Court directed parties to take date at the registry.
5. That Mr. Mutua Muli subsequently enquired from the Court registryabout availability of hearing dates and he was advised that the registrywas not allocating hearing dates for matters filed in the year 2017. The registry officials advised that the claimants await opening of the diary for the year 2018.
6. That the 2018 Diary has since been opened but the Deputy Registrarissued a notice indicating that there were no available hearing dates for matters filed in 2016, 2017 and 2018. The notice was issued on 18/1/2018. That throughout 2018, the registry did not issue hearing dates for matters filed in the year 2017. Accordingly, the claimants could not take steps to have the matter heard.
7. The applicant did not file a further affidavit to traverse the depositionby the claimants’ advocate in the replying affidavit. Indeed, the matters deposed to by the advocate for the claimant are within the knowledge of myself as an officer of this Court having been served with the stated notices regarding the status of backlog at the Nairobi Employment and Labour Relations Court and that the Court was not allocating dates for matters 2016, 2017 and 2018 until the parties are notified otherwise.
8. Indeed, there has been no notice to show cause served on the claimantregarding this matter which is a mandatory preliquisite before a matter is dismissed for want of prosecution.
9. Accordingly, this application lacks merit and is dismissed with costs inthe cause.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2021.
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. Mutua Muli for Claimants/Respondents
M/s Odero and Associate for Respondent/Applicant
Ekale – Court Assistant