[2021] KEELRC 649 (KLR)
The court found that the claimant had made reasonable efforts to prosecute the case, including attempting to set hearing dates, but was prevented by circumstances beyond his control, notably the Covid-19 pandemic and administrative delays in the court registry. The court held that dismissing the suit for want of...
Source-derived case information.
- Citation
- [2021] KEELRC 649 (KLR)
- Parties
- Claimant: Sylvester Harambee Indeche; Respondent: Daly & Inamdar Advocates
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2024 of 2016
- Procedural Posture
- Employment Cause / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; matter to be mentioned for fixing of hearing date.
- Judges
- AN Mwaure
- Legal Topics
- Dismissal for Want of Prosecution, Covid 19 Court Disruption, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Harambee Indeche
Claimant
Daly & Inamdar Advocates
Respondent
Procedural Posture
Employment Cause / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution given the delays attributed to the Covid-19 pandemic and administrative challenges.
- 2 Whether the claimant has demonstrated sufficient effort to prosecute the case and avoid dismissal.
Ratio Decidendi
The court found that the claimant had made reasonable efforts to prosecute the case, including attempting to set hearing dates, but was prevented by circumstances beyond his control, notably the Covid-19 pandemic and administrative delays in the court registry. The court held that dismissing the suit for want of prosecution would be unjust in these circumstances. Instead, the court exercised its discretion to give the claimant another opportunity to prosecute the case, emphasizing the need to balance the right to be heard with the efficient administration of justice. The court directed that the matter be mentioned before the Deputy Registrar to fix the earliest possible hearing date,...
Court Disposition
Suit not dismissed; matter to be mentioned for fixing of hearing date.
Orders
- The case will be mentioned before the Deputy Registrar on 11th November 2021 to fix the earliest convenient hearing date before any Employment and Labour Relations Court judge.
- A signed copy of the ruling will be availed to each party upon payment of court fees.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2024 OF 2016
(Before Hon. Lady Justice Anna Ngibuini Mwaure)
SYLVESTER HARAMBEE INDECHE...CLAIMANT
VERSUS
DALY & INAMDAR ADVOCATES....RESPONDENT
RULING
1. The case was scheduled for notice to show cause why the suit should not be dismissed for want of prosecution.
2. The claimant filed an affidavit to appeal to the court not to dismiss the suit. The same was dated 19th July, 2021. Indeed as per the affidavit deponed by the claimant he has demonstrated he attempted to set down the matter for hearing and was actually fixed for 18th March, 2020 but failed to take off because of the Covid – 19 pandemic.
3. He avers he sent an invitation again on 3rd September, 2020 but the registry informed him they were trying to retrieve the file.
4. It is clear the claimant has not been asleep and has been trying to set the matter for hearing but there has been interfering circumstances that were not of his own making.
5. The court has considered the submission by the respondent’s advocate as well. Having considered the submissions by both parties the court will try to give the claimant the opportunity to prosecute its case but give a close hearing date in order to meet the ends of justice taking into consideration that this is a 2016 case.
6. Case will be mentioned before the Deputy Registrar on 11. 11. 2021 to take a convenient earliest hearing date before any Employment and Labour Relations Court judge.
DELIVERED, DATED AND SIGNED IN NAIROBI THIS 21ST DAY OF OCTOBER, 2021
ANNA NGIBUINI MWAURE
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. 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 1Bof the 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.
A signed copy will be availed to each party upon payment of court fees.
ANNA NGIBUINI MWAURE
JUDGE