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ELRCPartially AllowedPetition No. 15 of 2012

Pius Wanjala v Permanent Secretary, Ministry of Medical Services & 4 others [2021] KEELRC 1468 (KLR)

Employment and Labour Relations Court
19 April 2021
MMM. Mbaru
2,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a nine-year-old petition because the claimant did nothing for over a year — inactivity can cost you your case.

What this practically means

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Executive summary

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The respondents applied by notice dated 8th March 2021, under Order 51 Rule 1, Order 17 Rule 2(1) and (3) and section 3A of the Civil Procedure Act, for dismissal of Petition No. 15 of 2012 (transferred from High Court Constitutional Petition No. 124A of 2012) for want of prosecution. They contended the petitioner had taken no steps for over eight years, that interim orders were vacated on 11th March 2013, and that he had filed multiple suits over the same subject matter, misleading courts with vacated orders; they also argued the petition was mute since his deployment question had been overtaken by events. The petitioner opposed, blaming the respondents' disobedience of orders (culminating in contempt convictions on 9th July 2020 in related Petition No. 124 of 2019), failure of the court to sit, non-allocation of the file after the presiding judge's transfer, and stays of proceedings arising from Court of Appeal Civil Appeal No. 107 of 2020. The court held that dismissal of a suit in the ELRC should be premised on Rule 16 of the ELRC (Procedure) Rules, 2016, which is materially similar to Order 17 Rule 2 CPR. Finding the last substantive action was the petitioner's letter of 25th February 2020, which was not pursued, and that over a year of inaction had elapsed with no sufficient cause shown, and that the stays in related petitions did not affect this petition, the court found the application merited. The petition was dismissed for want of prosecution with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the petition should be dismissed for want of prosecution under Rule 16 of the ELRC (Procedure) Rules, 2016 (or Order 17 Rule 2 of the Civil Procedure Rules) for inaction of over one year
  2. 2.Whether the petitioner has shown sufficient/reasonable cause for the failure to prosecute the petition
  3. 3.Whether the stay of proceedings in related petitions (ELRC Petition No. 124 of 2019 and ELRC Petition No. 105 of 2020) affects this petition
  4. 4.Whether the court retains jurisdiction to hear the petition, it being allegedly mute

Key legal issues

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01

Correct procedural basis for dismissal for want of prosecution in the ELRC

Holding

Dismissal of a suit before the ELRC should be premised on Rule 16 of the ELRC (Procedure) Rules, 2016, though Order 17 Rule 2 CPR is materially similar

Reasoning

The court noted the application was brought under Order 17 Rule 2 CPR and Order 51 Rule 1, but held that dismissal of a suit in this court should be under Rule 16 of the ELRC (Procedure) Rules, 2016. It found no material departure between the two provisions since both require a year of inaction and an opportunity to show cause.

p. 3
02

Whether inaction for over one year justified dismissal

Holding

Yes - the last action was the letter of 25th February 2020, and by the application date of 8th March 2021 over a year had elapsed with no good cause shown

Reasoning

The court found the records showed no attendance after 19th September 2018 apart from the letter of 25th February 2020, which was not pursued. Intervening suits and the respondents' disobedience of court orders did not constitute sufficient cause to keep the petition idle. To keep the petition inactive invited the very application made.

p. 4
03

Effect of stays of proceedings in related petitions

Holding

The stay in ELRC Petition No. 124 of 2019 and ELRC Petition No. 105 of 2020 did not affect the instant petition, the causes of action being different

Reasoning

The court distinguished the related petitions: although the parties were the same, the cause of action in ELRC Petition No. 124 of 2019 differed from this petition, and the stay orders obtained in the Court of Appeal related to those matters, not this one.

p. 4

Legal principles established

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  • A suit in the ELRC in which no action has been taken by either party for one year may be dismissed for want of prosecution unless reasonable cause is shown
  • Where a reason for delay is offered the court should be lenient, but must also consider prejudice to the defendant
  • Justice considers both parties and the judge, since lapse of time may imperil evidence

Court orders

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  1. 1.The suit is dismissed for want of prosecution
  2. 2.Costs to the respondents

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 51 Rule 1, Order 17 Rule 2(1) and (3) and section 3A of the Civil Procedure Act

Relief refused

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Petitioner's request that the application for dismissal be dismissed with costs and the petition proceed to hearing

No good cause shown for over a year of inaction in prosecuting the petition

p. 4

Costs

Costs to the respondents.

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, the suit herein is dismissed for want of prosecution. Costs to the respondents.
p. 4Final orders - dismissal for want of prosecution
the court will therefore dismiss a suit where either party has failed to take any action within one year and there is no sufficient cause demonstrated that the delay or failure to take action was for good cause.
p. 3Rule 16 ELRC Procedure Rules
The submissions that the petitioner is wronged and the respondents have failed to obey court orders are not sufficient cause to keep the petition inactive.
p. 4Sufficient cause
The import of the inactivity is severe. The court finds no cause to justify keeping the petition in the achieves for no good cause.
p. 4Consequences of inaction

Issues in the judgment

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minor

Judgment inconsistently names the petitioner's counsel as 'Dr Wanjala', suggesting the petitioner appeared in person or the drafter conflated the petitioner with counsel; the petitioner's full name is not stated in the coram

minor

The judgment contains typographical errors, e.g. 'the delay in inexcusable' and 'keeps the petition in the achieves'

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, "Pius Wanjala v Permanent Secretary, Ministry of Medical Services & 4 others [2021] KEELRC 1468 (KLR)", Case Analysis (2021). Petition No. 15 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1468/eng@2021-04-19

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