Abiud Lusweti Kalakate v Spin Knit Limited [2022] KEELRC 492 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

ELRC CAUSE NUMBER 195 OF 2018

ABIUD LUSWETI KALAKATE............................................................................CLAIMANT

-VERSUS-

SPIN KNIT LIMITED.........................................................................................RESPONDENT

(BEFORE HON. JUSTICE DAVID NDERITU)

RULING

I. INTRODUCTION

1. This cause was filed in court by the Claimant on 12th  June, 2018 by way of a Statement of claim dated 4th May,  2018. The Claimant is seeking for a declaration that his  termination in employment by the Respondent was unfair  and unlawful. He is also seeking monetary compensation  under various heads totaling Kshs.1,090,728, costs and  interest.

2. In a reply to the memorandum of claim dated 19th July,  2018 the Respondent prays that the Claimant’s claim be  dismissed with costs.

3. The parties also filed witness statements, lists of  documents, and on 21st January, 2020 the matter was  certified ready for hearing (Mbaru J) and fixed for hearing  on 19th May, 2020.

4. The court record does not show what happened on 19th  May, 2020.   The matter came up again in court on 20th  July, 2020 but there was no representation from the  Claimant and thereafter the matter went dormant.

5. After a lengthy period of dormancy, the court issued a  Notice to show cause (NTSC) why the  cause should not be  dismissed for want of  prosecution dated 28th September,  2021 which came in court for hearing on 26th October,  2021.

6. The Claimant opposed NTSC by way of a replying  affidavit sworn by ABIUD LUSWETI KALAKATE, the  Claimant, on 8th November, 2021. The Respondent  supported the NTSC by way of an affidavit sworn by  N.O. WANJALA on 31st January, 2022.

7. On 2nd February, 2022 Counsel for both parties agreed that  a ruling be rendered by this court based on the affidavits  filed.

II. THE LAW APPLICABLE

8. Order 17 Rule 2(1) of the Civil Procedure Rules  provides  as follows:

“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”

9. Rule 16(1) of the Employment and Labour Relations  Court (Procedure) Rules, 2016  provides as hereunder:-

“In any suit in which no application  has been made in accordance with  Rule 15 or no action has been taken by either party within one year from  the date of its filing, the court may give notice in writing to the parties to show cause why the suit should not be dismissed and if no reasonable cause is shown to its satisfaction, may dismiss the suit.”

10. As stated elsewhere in this ruling there was no action  taken by either party for the period from 20th July, 2020  when the matter was last in court until the time when the  court issued the  NTSC on 28th September, 2021.

11. In paragraphs 6, 7, and 8 of his replying affidavit, the  Claimant attributes the delay in prosecuting the matter to  the Covid-19 Pandemic and the confusion and disorder  following the pandemic.

12. However, the Respondent argues that the Claimant has  been completely inordinate and indolent in failing to take  action to prosecute this cause. The Respondent argues that  the  Claimant is using the pandemic as an excuse for his  intertia and inexcusable delay in  prosecuting the matter.

13. While it is the Claimant who filed this cause and hence  he  is under obligation to prosecute the same to logical  conclusion, this court notes  that the applicable law, Order  17 Rule 2(1) of  the Civil Procedure Rules and Rule  15(1) of the Employment and Labour Relations Court  (Procedure) Rules 2016, provides that either party to a  cause may take steps to have the  same prosecuted and or  in the case of the Respondent herein apply for dismissal of  the same for want of prosecution.  The Respondent herein  on its part did not take steps to have the cause prosecuted  or dismissed for want of prosecution and it is therefore  equally to blame for the prolonged delay and inaction in  this matter.

14. The Respondent has only come out strongly in support of  the dismissal of the cause for want of prosecution after  the court, suo motto, issued the NTSC.  Of course the  Respondent is entitled to support the NTSC but is  equally  to blame for the delay in view of the provisions of the law  cited above.

III. DISPOSAL

15. This court has carefully gone through the replying  affidavit by the Claimant and the affidavit in support of  the NTSC by the Respondent. Strictly  speaking there is  no good reason given by the Claimant for the delay in  prosecuting this cause.  Even in the middle of the Covid- 19 pandemic court matters were proceeding virtually and  since mid 2021 there has been increased action in courts  and registries in allocating dates for hearing of causes.

16. On the other hand, there is no explanation from the  Respondent as to why it took no action to have the matter  prosecuted or dismissed. Both the Claimant and the  Respondent are to blame for the prolonged inaction and  delay in either prosecution or dismissal of this cause.

17. However, the law cited above grants this court unfettered  discretion in dismissing a cause for want of prosecution or  giving the parties an opportunity to take steps towards  prosecuting and concluding the cause.

18. Although no good or reasonable cause has been shown by  the Claimant to explain the prolonged delay in  prosecution of  this cause, this court hereby reluctantly  exercises its discretion in favour of not dismissing this  cause and allows the Claimant a last opportunity to  prosecute this cause.  He has undertaken to do so in his  affidavit.

19. In the circumstances, the NTSC issued by court on 28th  September, 2021 is hereby set aside and the Claimant is  ordered to fix this matter for hearing and to have the same  proceed to hearing without any further delay and or  unnecessary adjournment.

20. There is no order as to costs in respect of the NTSC.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 15TH DAY OF MARCH 2022.

..............................

DAVID NDERITU

JUDGE