Mangeni v Mayur [2023] KEELRC 291 (KLR)

Mangeni v Mayur (Cause 1911 of 2013) [2023] KEELRC 291 (KLR) (9 February 2023) (Ruling)

Neutral citation: [2023] KEELRC 291 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1911 of 2013

L Ndolo, J

February 9, 2023

Between

Mary Akuku Mangeni

Claimant

and

Mrs Asifina Mayur

Respondent

Ruling

1. What falls for determination is the Respondent’s Notice of Motion application dated June 16, 2020 seeking dismissal of the Claimant’s claim for want of prosecution.

2. The application is supported by an affidavit sworn by the Respondent’s Counsel, Sylvia Malemba Kitonga and is based on the following grounds:a.The claim was filed on November 29, 2013 and the Respondent entered appearance on January 14, 2014 and thereafter filed a defence on 2nd April 2014;b.The Claimant invited the Respondent on January 23, 2015, to take a convenient hearing date but the file was not found;c.The Claimant issued the Respondent with a hearing notice dated February 12, 2015 indicating that the matter was coming up for hearing on March 23, 2015 but the hearing notice was received under protest because the date was not taken by mutual consent and the Advocate concerned had two other matters on that day;d.The matter was not listed on March 23, 2015 even though the Respondent’s Advocate was bereaved and if the matter had been listed it would not have proceeded;e.Following invitation by the Respondent by letter dated November 9, 2015, the parties fixed the matter for hearing on February 29, 2016 but it did not proceed;f.Since then, the Claimant has not taken any step to prosecute the matter;g.It is apparent that the Claimant has lost interest in pursuing her claim and further delay will only result in injustice against the Respondent. It is fair and just that litigation come to an end.

3. The Claimant did not respond to the application in spite of due service.

4. Rule 16 of the Employment and Labour Relations Court (Procedure) Rulesprovides as follows:1. 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.

2. If reasonable cause is given to the satisfaction of the Court, it may make such orders as it thinks fit to obtain expeditious hearing and determination of the suit.

3. A party to the suit may apply for dismissal as provided in paragraph (1).

4. The Court may dismiss the suit for non-compliance with any direction given under this rule.

5. A perusal of the court record reveals the following court events:a.On April 23, 2015, the matter came up before Nzioki wa Makau J when the Claimant was absent. The matter was stood over generally and the Claimant directed to pay Kshs. 400 as court adjournment fees, before taking any further step;b.On October 17, 2017, the matter came up for notice to show cause before Mbaru J who dismissed the claim for want of prosecution.

6. It is therefore evident that the present application is unnecessary because the claim was dismissed more than five (5) years ago.

6. In any event, the matter stands dismissed and the file is closed.

6. I make no order for costs.

DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF FEBRUARY 2023LINNET NDOLOJUDGEAppearance:No appearance for the ClaimantMs. Kitonga for the Respondent