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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 14 (KLR)

George Wekesa v Multimedia University of Kenya [2020] KEELRC 14 (KLR)

Employment and Labour Relations Court
16 December 2020
MMM. Mbaru
940 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The respondent, Multimedia University of Kenya, applied by notice of motion dated 22nd February, 2020 for dismissal of the claimant's suit for want of prosecution and costs. It argued that the suit was filed on 23rd August, 2016, pleadings closed on 3rd October, 2018, and the claimant had taken no step to fix the matter for hearing despite four invitations from the respondent's advocate, Dennis Joseck Mare, by letters dated 4th October, 2018, 18th November, 2019 and 17th January, 2020, rendering the claimant an indolent litigant. The claimant, through his advocate Wycliffe Omwenga, replied that the 2016 diary was ponded in November 2019, the court file went missing, the respondent was invited to fix a date by consent on 29th November 2019, and that a hearing date had already been fixed by the court. The court applied Rule 16 of the ELRC (Procedure) Rules, 2016, which allows dismissal where no action is taken within one year and no reasonable cause is shown. It found on the record that since 3rd October, 2018 the claimant had taken no action, and held that the claimant's assertions of a court-fixed hearing date were not correct. While acknowledging the court's focus on backlog matters, the court held each litigant must actively secure a hearing date. Dismissal was refused in this instance, but the claimant was sanctioned with the respondent's costs of Ksh.50,000 payable within 30 days, directed to fix a hearing date within 30 days, and warned that the suit would stand dismissed with costs upon further inaction as of 30th January, 2021.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

Dismissal was refused in this instance but a costs sanction and timelines were imposed, with automatic dismissal if the claimant remains inactive

Reasoning

The court found the claimant had taken no action since pleadings closed on 3rd October, 2018, and rejected as untrue the claimant's assertion that a hearing date had been fixed by the court. However, to ensure each party is heard on the merit, the court imposed a sanction - costs of the application, a 30-day deadline to fix a hearing date, and automatic dismissal with costs upon further inaction.

p. 2
02

Whether the claimant showed reasonable cause for the inaction

Holding

No reasonable cause was shown; the claimant's Replying Affidavit was found not completely true

Reasoning

The claimant's advocate asserted that a hearing date had been fixed by the court and that the court was addressing older backlog matters. The court found from the record that no such date had been fixed by the court, and held that while the court prioritised older matters, each litigant must actively move the registry to secure a hearing date rather than rely on backlog priorities.

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Legal principles established

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  • Under Rule 16 of the ELRC (Procedure) Rules, 2016, parties have one year to fix a suit for hearing, failing which the suit may be dismissed by the court or on application where no reasonable cause is shown
  • Each litigant has the responsibility to move the court and secure a hearing date and cannot sit back waiting for the other party or the court

Court orders

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  1. 1.The application seeking dismissal of the suit for want of prosecution was not allowed
  2. 2.The claimant to meet the respondent's costs of the application assessed at Ksh.50,000, payable within 30 days
  3. 3.The claimant to move and ensure a hearing date is allocated within the next 30 days
  4. 4.Where there is inaction, the suit shall stand dismissed with costs as of 30th January, 2021
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 16

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Wekesa v Multimedia University of Kenya [2020] KEELRC 14 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/14/eng@2020-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.