Barbara Karwitha Kiugu v Pernord Ricard Kenya Limited [2021] KEELRC 798 (KLR)
The bottom line
#Kenya's Employment Court dismissed a worker's attempt to revive a case that sat idle for three years, confirming that claimants must actively prosecute their own suits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant has shown substantial grounds and reasonable cause to justify setting aside the orders of 7th February, 2019 dismissing the suit for want of prosecution
- 2.Whether the delay from 2016 to 2019 in fixing the suit for hearing, and the delay from 16th July, 2019 to 6th November, 2019 in filing the reinstatement application, were explained
- 3.Whether the Notice to Show Cause was properly served on the claimant's advocates
Key legal issues
#Whether the suit dismissed for want of prosecution ought to be reinstated
The application for reinstatement was dismissed; no reasonable cause or substantial grounds justified the delay.
The claimant's advocates did not attend court on 7th February, 2019 despite a Notice to Show Cause posted at their address of record. The lapse in attendance from 2016 to 2019 was not explained, and after counsel learned of the dismissal on 16th July, 2019, the application was only filed on 6th November, 2019. Service of the notice was not contested, and the claimant's interest as right-holder was not addressed.
Whether the Notice to Show Cause was properly served on the claimant's advocates
Service was effective; the notice was posted at the same address given in the pleadings and marked for service, and the claimant did not contest that address.
The notice was posted at Wandabwa Advocates' address at ACK Gardens House, 1st Ngong Avenue, Nairobi. The court found nothing showing this was a different address from that provided in the pleadings and marked for service, and the claimant did not contend otherwise. The claim of non-service therefore failed.
Legal principles established
#- Upon filing suit, the onus lies on the claimant, through counsel or in person, to move the court and have the matter heard and determined.
- Under Rule 16 of the ELRC (Procedure) Rules, 2016, the court may, upon notice, dismiss a suit not fixed for hearing within a year.
Court orders
#- 1.Application dated 6th November, 2019 dismissed
- 2.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 16 (dismissal for want of prosecution and reinstatement application)
Relief refused
#Setting aside of the orders made on 7th February, 2019 dismissing the suit for want of prosecution and reinstatement of the suit for hearing on merit
No reasonable cause justified the delay in prosecuting the matter and no substantive grounds were advanced for reinstatement
Costs
Costs to the respondent
Quotable passages
#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 6th November, 2019 is found without merit and is hereby dismissed. Costs to the respondent.
Upon filing suit, the claimant had the responsibility, through counsel or self to move the court and have the matter heard and determined.
Pursuant to Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016 the court upon notice to a party whose matter is not fixed for hearing within a year is allowed to dismiss the same.
Issues in the judgment
#The name of the judge as printed appears as 'M. MBAR?' with a question mark, suggesting a typographical or transcription error (likely 'M. Mbaru').
The judgment contains an apparent date error in the Grounds of Opposition, stating the application was filed in 'November, 2016' when the application is dated 6th November, 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barbara Karwitha Kiugu v Pernord Ricard Kenya Limited [2021] KEELRC 798 (KLR)", Case Analysis (2021). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/798/eng@2021-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.