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ELRCPartially AllowedNot stated in judgment· [2012] KEELRC 232 (KLR)

JOSEPH KAMAU THUO V KENOL KOBIL LTD [2012] KEELRC 232 (KLR)

Industrial Court of Kenya
3 October 2012
1,442 words in judgment
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The bottom line

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Kenya's Industrial Court struck out an employer's late, unverified grounds of opposition, ruling that constitutional fair-hearing rights cannot excuse missed court deadlines.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 28th August, 2012 in an industrial dispute before the Industrial Court at Nairobi, on which an interim injunction had issued on 30th August, 2012. Counsel for the Claimant/Applicant (Mr. Juma) sought striking out of the Respondent's grounds of opposition as filed four days out of time contrary to rule 16(6) of the Industrial Court (Procedure) Rules, 2010, and as unverified by affidavit contrary to rule 13(3). Counsel for the Respondent (Mr. Oyatsi) countered with Article 50 of the Constitution on fair hearing and Section 20 of the Industrial Court Act, 2011 on the ouster of technicalities, and sought an extension of time. The court, per D.K.N. Marete J, held that procedural rules are mandatory in the civil process and cannot be wished away; Article 50(1) and Section 20 cannot be a remedy for defective pleadings that defy the rules of procedure. The grounds of opposition were struck out and the Respondents were injuncted in terms of prayers 3 and 4 of the Notice of Motion. However, noting that the subject matter was a delicate industrial relationship critical to both parties' economic welfare, the court recommended - with the parties' apparent agreement at the close of submissions - that they instead adopt provision of security to the Claimant as a win-win alternative to the injunction. No costs order was made.

Key legal issues

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01

Effect of non-compliance with rules 16(6) and 13(3) of the Industrial Court (Procedure) Rules, 2010

Holding

Non-compliance renders the grounds of opposition incompetent and the court struck them out

Reasoning

Counsel for the Claimant argued the grounds were filed four days out of the seven-day timeline under rule 16(6) and were unverified by affidavit contrary to rule 13(3). The court accepted that compliance with procedural rules is mandatory in the civil process and that neither Article 50 of the Constitution nor Section 20 of the Industrial Court Act could rescue defective pleadings, and accordingly struck out the grounds of opposition.

p. 2
02

Whether Article 50 of the Constitution and Section 20 of the Industrial Court Act oust technicalities so as to save late and defective grounds of opposition

Holding

The submission fails in toto; those provisions cannot be a remedy for defective pleadings

Reasoning

Counsel for the Respondent invoked Article 50 fair hearing and Section 20's direction that the court act without undue regard to technicalities. The court held that procedural rules exist to imbue a proficient system, that Parliament could not have intended astute procedural requirements to be displaced on grounds of technicality, and that Article 50(1)'s balance borders on criminal law practice, dismissing the submission.

p. 2
03

Whether the injunction should issue or security be provided

Holding

Injunction granted in terms of prayers 3 and 4, but with a recommendation that the parties adopt security for the Claimant's interest as an alternative

Reasoning

The court found the dispute a delicate industrial relationship whose balance is critical to both parties' economic welfare. While granting the injunction for failure of the opposition, it agreed with the Respondent's counsel that provision of security to the Claimant would be a win-win middle ground and recommended the parties explore it sincerely.

p. 3

Legal principles established

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  • Procedural rules of court are mandatory and cannot be wished away in the civil process; defects of procedure cannot be cured by an appeal to Article 50 fair-hearing rights or Section 20 of the Industrial Court Act.
  • Article 50(1)'s fair-hearing guarantee does not provide a remedy for pleadings that defy the rules of procedure in civil matters.

Court orders

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  1. 1.Grounds of opposition filed by the Respondent on 11th August, 2012 struck out
  2. 2.Respondents injuncted in terms of prayers 3 and 4 of the Notice of Motion dated 28th August, 2012
  3. 3.Recommendation that parties instead explore provision of security to the Claimant as a win-win alternative to the injunction
Jurisdiction invoked
Industrial Court Act, 2011 and the Industrial Court (Procedure) Rules, 2010 (interlocutory application under a certificate of urgency)

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, "JOSEPH KAMAU THUO V KENOL KOBIL LTD [2012] KEELRC 232 (KLR)", Case Analysis (2012). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/232/eng@2012-10-03

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