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Patrick Gichuhi Ngugi v Team Australia Limited [2021] KEELRC 786 (KLR)

Employment and Labour Relations Court
7 October 2021
MMM. Mbaru
704 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court spared a delayed lawsuit from dismissal, but gave the claimant just 30 days to set a hearing date or lose the case automatically.

What this practically means

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Executive summary

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The respondent, Team Australia, filed an application dated 8th October 2020 seeking dismissal of the claimant's suit for want of prosecution with costs, supported by the affidavit of Tabitha Njoki Waititu, its lead manager. She averred that pleadings closed and hearing directions issued on 28th May 2019, after which the claimant took no step to prosecute the claim for over a year, warranting dismissal under the Court Rules. The claimant opposed, explaining that he invited the respondent to a hearing date for 18th June 2019 but the respondent did not attend, and that COVID-19 closures of courts from 16th March 2020 caused delays beyond his control. The respondent's further affidavit countered that its non-attendance did not prevent the claimant from obtaining a hearing date, and that courts continued functioning virtually during the pandemic. The court, per M. Mbaru J, noted that under Rule 16 of the ELRC (Procedure) Rules, 2016, a suit may be dismissed for want of prosecution where there is inaction for over a year. It found that from 28th May 2019 the claimant did nothing to secure a hearing date, even after being served with the application, conduct befitting a litigant who is not vigilant. However, taking judicial notice of the COVID-19 disruption and in the interests of justice, the court declined outright dismissal, granting the claimant 30 calendar days to fix a hearing date, failing which the suit would stand dismissed on 8th November 2021. Costs were awarded to the respondent as applicant. Delivered at Nairobi on 7th October 2021.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit should be dismissed for want of prosecution under Rule 16 of the ELRC (Procedure) Rules, 2016 following inaction for over one year
  2. 2.Whether the COVID-19 court closures and the respondent's non-attendance on 18th June 2019 justify the claimant's delay

Key legal issues

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01

Whether the claimant's inaction since 28th May 2019 warranted dismissal for want of prosecution

Holding

Although the claimant had done nothing to secure a hearing date for over a year and appeared not vigilant, the court declined outright dismissal and granted a final 30-day window in the interests of justice.

Reasoning

The suit was filed on 27th April 2017, pleadings closed on 28th May 2019 with hearing directions, and nothing was done thereafter until the respondent's application. The claimant offered no tangible evidence of vigilance. Nonetheless, weighing all factors and the interests of justice, the court allowed the claimant a fair chance to fix a hearing date within 30 calendar days, with automatic dismissal thereafter.

p. 2
02

Whether COVID-19 closures excused the delay

Holding

The court took judicial notice of the CJ's Notice of 16th March 2020 closing courts, but held that courts resumed blended operations in August 2020 and the closures did not excuse the claimant's inaction.

Reasoning

The court acknowledged the temporary closure of courts following the Chief Justice's Notice of 16th March 2020 due to COVID-19, but noted that from August 2020 courts up-scaled operations allowing virtual and physical prosecution of matters. The temporary closure therefore did not prevent the claimant from taking steps to secure a hearing date.

p. 1

Legal principles established

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  • Under Rule 16 of the ELRC (Procedure) Rules, 2016, a suit may be dismissed for want of prosecution, on the court's own motion or on application by a party, where there is inaction for over a year
  • The temporary closure of courts during COVID-19 did not stop parties from securing justice

Court orders

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  1. 1.Application dated 8th October 2020 seeking dismissal for want of prosecution is declined
  2. 2.Claimant granted 30 calendar days to fix a hearing date, failing which the suit shall stand dismissed on 8th November 2021
  3. 3.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 16 (dismissal for want of prosecution)

Relief refused

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Immediate dismissal of the suit for want of prosecution with costs

The court, in the interests of justice, gave the claimant a final chance to fix a hearing date within 30 days instead of dismissing the suit outright

p. 2

Costs

Costs to the respondent as the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, application dated 8th October, 2020 is declined save the claimant has 30 calendar days to fix a hearing date failure to which the suit shall stand dismissed on 8th November, 2021.
p. 2disposition - conditional dismissal
Such only speaks to a litigant who is not vigilant.
p. 2claimant's inaction
However, the temporary closure of court did not stop any party from securing justice over any matter.
p. 1COVID-19 closures no excuse
Costs to the respondent.
p. 2costs order

Issues in the judgment

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minor

The judgment states dismissal would take effect 'as of 8 th October, 2021' in the body but 'on 8th November, 2021' in the orders, an internal inconsistency in the dismissal date

minor

The claimant's name and the suit's case number are not stated in the judgment

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, "Patrick Gichuhi Ngugi v Team Australia Limited [2021] KEELRC 786 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/786/eng@2021-10-07

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