[2024] KEELRC 890 (KLR)
The court found that the claimant had failed to take any steps to prosecute the suit for nearly five years and had not provided any explanation for the delay. The court applied Rule 16(1) of the Employment and Labour Relations Court Procedure Rules and the principles from Ivita v Kyumbu, holding that the delay was...
Source-derived case information.
- Citation
- [2024] KEELRC 890 (KLR)
- Parties
- Applicant: Sam Laurent-Samuel; Respondent: Camusat Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 598 of 2019
- Procedural Posture
- Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- claim dismissed for want of prosecution
- Judges
- L Ndolo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Abuse of Process
- 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
Sam Laurent-Samuel
Applicant
Camusat Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the claimant's suit should be dismissed for want of prosecution due to prolonged inaction.
- 2 Whether the delay in prosecuting the suit is prolonged and inexcusable.
- 3 Whether the respondent has demonstrated prejudice resulting from the delay.
Ratio Decidendi
The court found that the claimant had failed to take any steps to prosecute the suit for nearly five years and had not provided any explanation for the delay. The court applied Rule 16(1) of the Employment and Labour Relations Court Procedure Rules and the principles from Ivita v Kyumbu, holding that the delay was prolonged and inexcusable. The absence of any response or appearance by the claimant further supported the conclusion that the suit should be dismissed for want of prosecution. The court exercised its discretion to dismiss the claim, finding no justification to allow it to proceed after such an extended period of inactivity.
Court Disposition
claim dismissed for want of prosecution
Orders
- The claim is dismissed for want of prosecution.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
28 paragraphs
Samuel v Camusat Kenya Limited (Cause 598 of 2019) [2024] KEELRC 890 (KLR) (24 April 2024) (Ruling)
Neutral citation: [2024] KEELRC 890 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 598 of 2019
L Ndolo, J
April 24, 2024
Between
Sam Laurent-Samuel
Claimant
and
Camusat Kenya Limited
Respondent
Ruling
1. By its Notice of Motion dated 28th November 2023, the Respondent seeks dismissal of the Claimant’s claim for want of prosecution.
2. The Motion is based on the ground that the Claimant has neglected and/or otherwise failed to set down the suit for hearing.
3. In his affidavit in support of the Motion, Counsel for the Respondent, Simon Wekesa, depones that since 2019, when the Respondent filed a Response to the claim, the Claimant has not taken any steps to set down the matter for hearing.
4. Counsel states that the neglect and/or failure by the Claimant to set down the matter for hearing amounts to an abuse of the court process.
5. The Claimant did not respond to the Motion, despite due notification.
6. Perusal of the court record indicates that since 2019, the matter came up severally, but there was no attempt by the Claimant to set it down for hearing. The last time the matter came up for mention was 19th June 2020, when both parties were absent and it was stood over generally.
7. Subsequently, the Court listed the matter for further mention on 15th November 2023 but only the Respondent appeared. At that appearance, the Respondent’s Counsel informed the Court that he would be filing an application to have the matter dismissed for want of prosecution. The application was duly filed, hence this ruling.
8. Rule 16(1) of the Employment and Labour Relations Court Procedure Rules provides as follows:16. (1) In any suit in which no application has been made in accordance with Rule 15 or no action has been taken by either party within one year from the date of its filing, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed and if no reasonable cause is shown to its satisfaction, may dismiss the suit.
9. The principles to be taken into account in issuing an order for dismissal of a suit for want of prosecution were established in Ivita v Kyumbu [1984] eKLR 441 as follows:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay? Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay…He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged, if the court is satisfied with the Plaintiff’s excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
10. The present case has remained unprosecuted for close to five (5) years and the Claimant has not offered any explanation for the lapse.
11. The only thing to do in the circumstances, is to dismiss the claim for want of prosecution, which I hereby do.
12. Each party will bear their own costs.
13. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY APRIL 2024LINNET NDOLOJUDGEAppearance:No appearance for the ClaimantMr. Wekesa for the Respondent