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ELRCPartially AllowedNot stated in the judgment text provided

Kanai v Parliamentary Service Commission & another (Cause 560 of 2014) [2022] KEELRC 4126 (KLR)

Employment and Labour Relations Court
29 September 2022
1,823 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an 8-year-old employment claim because the claimant ignored court conditions and let the case sit idle for over two years.

What this practically means

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Executive summary

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The 1st Respondent moved the court by Notice of Motion dated 15th February 2022, under Order 17 Rule 2(1) and (3) and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Rule 16(1) and (3) of the ELRC (Procedure) Rules 2016, seeking dismissal of the Claimant's cause for want of prosecution. The cause had been filed on 29th October 2014, dismissed for want of prosecution on 20th November 2019, and reinstated on 21st May 2020 (Mbaru J) on condition that the Claimant pay Kshs.10,000/= in costs before allocation of a hearing date. The Applicant contended those costs were never paid and that no steps had been taken to prosecute the cause since reinstatement. The Claimant blamed Covid-19 court disruptions and a restructuring within her advocates' registry for the delay and sought a last chance to prosecute. The court framed a single issue: whether the cause should be dismissed with costs for want of prosecution. It found no evidence the court registry was closed due to Covid-19, no affidavit from the advocates explaining the alleged restructuring, no attempts to fix a hearing date, and no payment of, or willingness to pay, the conditional costs - a condition precedent to obtaining a hearing date. The court held the delay inordinate, unreasonable and inexcusable, noted that justice cuts both ways and that the Applicant was entitled to fair hearing under Article 47 and the Fair Administrative Action Act. The application was allowed and the cause dismissed for want of prosecution with costs to the Applicant and the 2nd Respondent.

Questions the Court framed

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

  1. 1.Should the Claimant's cause be dismissed with costs for want of prosecution?

Key legal issues

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01

Whether the cause should be dismissed for want of prosecution

Holding

Application allowed; cause dismissed for want of prosecution with costs to the Applicant and 2nd Respondent.

Reasoning

The cause was reinstated on 21st May 2020 on condition the Claimant pay Kshs.10,000/= in costs before allocation of a hearing date. Those costs were never paid and no explanation was offered. There was no evidence the court registry was closed due to Covid-19, no affidavit from the Claimant's advocates on the alleged restructuring, and no attempts to fix the matter for hearing until after service of the dismissal application. The delay since reinstatement, and since filing in 2014, was inordinate, unreasonable and inexcusable.

p. 4

Legal principles established

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  • A litigant has a right to be heard but is equally under an obligation to take steps to prosecute the cause.
  • Where reinstatement of a cause is conditional on payment of costs before allocation of a hearing date, compliance with that condition is a condition precedent to fixing the matter for hearing.
  • A party alleging that Covid-19 caused delay must demonstrate how and to what extent it did so.

Court orders

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  1. 1.The Notice of motion dated 15th February, 2022 is allowed with costs to the Applicant
  2. 2.The cause is dismissed for want of prosecution with costs to the Applicant and the 2nd Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 17 Rule 2(1) and (3) and Order 51 Rule 1 of the Civil Procedure Rules 2010; Rule 16(1) and (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Claimant's plea to be given a last chance to prosecute the cause

The delay was inordinate, unreasonable and inexcusable, and the conditional costs of Kshs.10,000/= awarded in the ruling of 21st May 2020 were never paid despite being a condition precedent to fixing a hearing date

p. 4

Costs

Cause dismissed for want of prosecution with costs to the Applicant and the 2nd Respondent.

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.

It is in the Claimant who was ordered to meet the costs in the sum of Kshs.10,000/= not her Advocates. She has not settled the same since 21st May, 2020.
p. 4responsibility of litigant, not counsel, to comply with costs condition
While the Claimant has a right to be heard she is equally under obligation to take steps to be heard by prosecuting her cause and taking steps as appropriate towards such prosecution of the cause.
p. 4reciprocal duty to prosecute one's cause
The Notice of motion dated 15th February, 2022 is allowed with costs to the Applicant and hence this cause is hereby dismissed for want of prosecution with costs to the Applicant and the 2nd Respondent.
p. 4final orders - dismissal for want of prosecution

Issues in the judgment

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minor

Case number, cause name and full party names are not stated in the judgment text provided; parties are identified only by role.

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, "Kanai v Parliamentary Service Commission & another (Cause 560 of 2014) [2022] KEELRC 4126 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4126/eng@2022-09-29

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