Nigogo v Mlewa t/a Karema Medical Clinic [2024] KEELRC 2460 (KLR)

Nigogo v Mlewa t/a Karema Medical Clinic (Cause 755 of 2017) [2024] KEELRC 2460 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KEELRC 2460 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Cause 755 of 2017

M Mbarũ, J

October 11, 2024

Between

Harriet Nigogo

Claimant

and

John Karema Mlewa t/a Karema Medical Clinic

Respondent

Ruling

1. The ruling herein relates to the application dated 16 March 2022 filed by the respondent, John Karema t/a Karema Medical Clinic under the provisions of Order 17 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules seeking orders;This suit be dismissed for want of prosecution.Costs of this application and the suit be provided for.

2. The application is supported by the respondent and affidavit of John Karema Mlewa and on the grounds that the claimant has failed to prosecute this suit for over 5 years and should be dismissed with costs. The failure to prosecute the suit has caused the respondent loss and damage and has been forced to pay legal costs which is prejudicial. The claimant filed the claim and has since failed to prosecute it and the suit should be dismissed with costs.

3. In reply, the claimant filed the Replying Affidavit of Edward Gichana advocate and aver that he is in the conduct of this matter for the claimant. He avers that through a letter dated 9 May 2022, there is a letter inviting the respondent to take a hearing date. The advocate representing the respondent Gunga & Co. Advocate died in the year 2022 and hence had to wait until the administrator of the firm was appointed. In July 2022 there were directions that the firm of Sherman Nyongesa was administering the firm and was invited through a notice dated 25 July 2022 to fix a hearing date.

4. The file kept disappearing from the registry without a trace on several occasions.

5. At the time application dated 16 March 2022 was filed and signed by Gunga Advocate, he had since passed on 27 December 2020 and being a sole practitioner, no advocate had taken over the administration. The orders sought in the application are not deserved and should be dismissed with costs.Parties attended and filed written submissions.

Determination 6. Under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, a party is allowed to move the court and seek that a suit that is not prosecuted for over a year be dismissed. The court too is at liberty to dismiss a suit where parties fail to attend and address as appropriate for over a year.In this case, the matter was last in court on 14 February 2020.

7. The averments by the claimant’s advocate that the advocate for the respondent is deceased as of 27 December 2020 are not challenged. The fact of Sherman Nyongesa Advocate taking over the administration of the firm is also not contested.

8. The respondent filed an application dated 16 March 2022 under the firm of the deceased advocate. This fact is not gone into. The respondent asserts that the administrator taking over the firm signed the application on 16 March 2022 but there is a fundamental difference between Sherman Nyongesa Advocate as taking over administration of Gunga Advocate and the deceased firm. One cannot replace the other in the filing of pleadings. The signatures appended thereto are not for or on behalf of the deceased advocate.

9. Where Sherman Nyongesa Advocate was allowed by the Law Society of Kenya to take over the administration of the firm, similarly as he has filed the written submissions under his law firm of Sherman Nyongesa & Mutubia Advocates, this is what should have been done.

10. However, the court takes judicial notice that the claimant too is equally to blame. No effort has been taken to prosecute the claim herein from 14 February 2020 when the court reinstated the suit after dismissal for non-attendance and prosecution on 15 March 2019. The trend of inaction is apparent.

11. Even in these proceedings, the advocate for the claimant in the Replying Affidavit does not address the whereabouts of the claimant. The interest in the claim is not apparent. Having the suit dismissed once and going into another lapse for a second time does not speak well of the claimant as a diligent party. The indolence on her part should not be condoned.

12. This is a 2017 matter and the claimant has not demonstrated any interest to prosecute it. The court will give conditions moving forward and where not met by the claimant, the suit shall be dismissed.

13. The application seeking the dismissal of the claim is hereby addressed as follows;

14. a.The claimant is given until 25 October 2024 to set the matter down for hearing;b.The claimant to pay the respondent’s costs assessed at Ksh.10,000 on or before 25 October 2024;c.Where (a) and (b) are not addressed, the suit shall stand dismissed the on 28 October 2024 with costs and the respondent will file the bill of costs.

DELIVERED IN OPEN COURT AT MOMBASA ON THIS 11 DAY OF OCTOBER 2024. M. MBARŨJUDGE