Canory Muchai v Ark Construction Limited & Chandravansh Construction Limited [2022] KEELRC 729 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT

AT NAIROBI

CAUSE NUMBER 2297 OF 2017

BETWEEN

CANORY MUCHAI …………………………………………...……………… CLAIMANT

VERSUS

1. ARK CONSTRUCTION LIMITED ………………………………………RESPONDENT

2. CHANDRAVANSH CONSTRUCTION LIMITED……....…...PROPOSED 3RD PARTY

RULING

1. This matter was at the last mention, on 10th November 2021, indicated as coming for Judgment on 23rd February 2022. This must have been indicated in the Court’s diary by error.

2. It comes up for Ruling on an Application dated 19th May 2021, filed by the Respondent, seeking to have the Claim dismissed for want of prosecution.

3. The Application is based on the Affidavit of Eric Ngugi, Administrative Officer of the Respondent, sworn on 19th May 2021.

4. He states that the Respondent applied for a 3rd Party Notice on 4th July 2018.

5. Leave was granted on 28th March 2019.

6. Since then, the Respondent submits, the Claimant has not taken active measures to prosecute the Claim. 2 years have lapsed, since the last step was taken.

7. The Claimant filed a Replying Affidavit, sworn on 7th October 2021. He confirms that he filed this Claim on 20th November 2017. He was acting in person. He was advised by his Advocates about 3rd Party Notice. Leave issued for 3rd Party Notice, but the Respondent did not communicate after this, to confirm service of the Notice. The Claimant lost his job during the pandemic, and relocated to his rural home. He did not have adequate communication with his Advocates. He is ready to prosecute the Claim.

8. Parties agreed to have the Application considered and determined, on the strength of their Affidavits and Submissions on record.

The Court Finds: -

9. The Application is based on the Civil Procedure Rules. Proceedings of the E&LRC are regulated by this Court’s Procedure Rules of 2016. There is a specific Rule on dismissal for want of prosecution. The Respondent does not say why it relies on Civil Procedure Rules.

10. Secondly, it is true that the Respondent applied to bring in a 3rd Party. Leave issued, and 3rd Party Notice was served by the Respondent. The record indicates that Intended 3rd Party filed a Notice of Appointment of Advocates on 14th March 2019. The Application for dismissal for want of prosecution, has not involved the 3rd Party.

11. Were there Pleadings filed by the 3rd Party? Have pre-trial directions been sought by the Respondent, who has brought a 3rd Party, before the Claim can be prosecuted?

12. The Claimant states he is not aware of service of 3rd Party Notice. Has the Respondent communicated to the Claimant about the Pleadings filed by the 3rd Party if any? The Respondent needs to conclude or clarify the position of third party proceedings.

13. The Court does not think that the Respondent has discharged its obligation with regard to 3rd Party proceedings, to warrant dismissal of the Claim for want of prosecution. The issues raised by the Claimant revolving around Covid-19 also have some degree of resonance. Operations in the Judiciary and other public service sectors, have considerable been slowed down by the pandemic.

IT IS ORDERED: -

a. The Application by the Respondent dated 19th May 2021 is declined.

b. Costs in the cause.

Dated, signed and released to the Parties electronically, at Nairobi, under the Ministry of Health and Judiciary Covid-19 Guidelines, this 23rd day of February 2022.

James Rika

Judge