[2022] KEELRC 12807 (KLR)
The court found that the claimant failed to provide credible evidence of ongoing out of court settlement negotiations at the time of dismissal and did not explain the inordinate delay of three years in bringing the application for reinstatement. The only correspondence produced was dated two years after the suit had...
Source-derived case information.
- Citation
- [2022] KEELRC 12807 (KLR)
- Parties
- Applicant: George Thungu; Respondent: Dhl Exel Supply Chain (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1352 of 2014
- Procedural Posture
- Reinstatement Application / Ruling on Application to Reinstate Suit Dismissed for Want of Prosecution
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Reinstatement of Dismissed Suit, Want of Prosecution, Delay in Prosecution, Out of Court Settlement, Interests of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Thungu
Applicant
Dhl Exel Supply Chain (K) Limited
Respondent
Procedural Posture
Reinstatement Application / Ruling on Application to Reinstate Suit Dismissed for Want of Prosecution
Legal Issues
- 1 Whether the claimant has provided sufficient cause to warrant reinstatement of a suit dismissed for want of prosecution.
- 2 Whether the delay in bringing the application for reinstatement is excusable.
- 3 Whether alleged out of court settlement negotiations justify non-attendance and delay.
Ratio Decidendi
The court found that the claimant failed to provide credible evidence of ongoing out of court settlement negotiations at the time of dismissal and did not explain the inordinate delay of three years in bringing the application for reinstatement. The only correspondence produced was dated two years after the suit had already been dismissed. The claimant admitted awareness of the notice to show cause but chose to ignore it. The court held that there was no sufficient cause shown to justify reinstatement of a matter dismissed four years prior, and that the unexplained delay was fatal to the application. Accordingly, the application for reinstatement was disallowed.
Court Disposition
application dismissed
Orders
- The claimant's application dated September 6, 2021 is disallowed.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
27 paragraphs
Thungu v Dhl Exel Supply Chain (K) Limited (Cause 1352 of 2014) [2022] KEELRC 12807 (KLR) (6 October 2022) (Ruling)
Neutral citation: [2022] KEELRC 12807 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1352 of 2014
L Ndolo, J
October 6, 2022
Between
George Thungu
Claimant
and
Dhl Exel Supply Chain (K) Limited
Respondent
Ruling
1. On April 19, 2018, ON Makau J dismissed the claimant’s claim for want of prosecution. This ruling responds to the claimant’s application brought by notice of motion dated September 6, 2021 seeking reinstatement of the claim.
2. The motion is supported by the claimant’s own affidavit and is based on the following grounds:a.That on March 26, 2018, the deputy registrar served a notice to show cause for April 19, 2018, upon the claimant’s counsel;b.That the parties were in the process of negotiating an out of court settlement and neither the claimant nor the respondent appeared in court on the aforementioned date;c.That due to the above inadvertence the suit was dismissed for non-attendance and/or want of prosecution;d.That failure to attend court on the scheduled date was not deliberate at all;e.That the claimant is still keen and willing to prosecute his case and asks the court to give him a second chance;f.That due to the foregoing, it is in the interest of justice and fairness that this application be allowed.
3. The respondent opposes the application by a replying affidavit sworn by its counsel, Victor Njenga on May 4, 2022.
4. Counsel denies that the parties were pursuing an out of court settlement as alleged by the claimant. He points out that the only correspondence on record is a letter from the claimant’s Advocate dated July 6, 2020, two years after the matter had been dismissed.
5. Mr Njenga further points out that the present application was filed on September 6, 2021, three years after dismissal of the matter.
6. He adds that there is no evidence that the claimant has followed up with his advocates since 2014, when the matter was filed.
7. The claimant filed his claim on August 13, 2014 and according to the court record, the last time the matter came up in court was August 15, 2016 when the claimant was absent. The matter remained dormant until April 19, 2018, when the court itself fixed it for notice to show cause why it should not be dismissed for want of prosecution.
8. The claimant admits having been aware of the notice to show cause but chose to ignore it, ostensibly because there were some out of court negotiations between himself and the respondent.
9. On its part, the respondent denied the existence of any such negotiations and the claimant did not provide any proof thereof. Indeed, the only letter availed is one written by the claimant’s advocates two years after dismissal of the claim.
10. Moreover, there was inordinate delay in bringing the present application, which was not explained. On the whole, I find no reason to resuscitate a matter that was dismissed four years ago.
11. The claimant’s application dated September 6, 2021 is therefore disallowed.
12. Each party will bear their own costs.
Orders accordingly.DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF OCTOBER 2022LINNET NDOLOJUDGEAppearance:Miss Kiruki for the claimantMr. Kahura for the respondent