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ELRCDismissedNot stated in the judgment· [2013] KEELRC 576 (KLR)

WALTER WANYAMA & 4 OTHERS V ITA MARINE CO. LIMITED [2013] KEELRC 576 (KLR)

Industrial Court of Kenya
21 February 2013
739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court chose fairness over strict deadlines, allowing a very late employment defence to stand because no judgment had yet been entered.

What this practically means

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Executive summary

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This ruling of the Industrial Court deals with a preliminary objection raised by the claimant's counsel, Mr. Osewe, challenging the manner in which the respondent's defence pleadings were commenced. The respondent, after being served with the Memorandum of Claim in September 2012, filed a Notice of Appointment through the Federation of Kenya Employers on 24 September 2012 and only filed and served a response to the claim on 1 February 2013. Counsel argued that this chronology was irregular and rendered the response a nullity. The court framed two issues: the correct procedure for filing a defence in Industrial Court proceedings, and whether failure to file and serve pleadings within the statutory period renders the pleading a nullity. On the first issue, the court held that under rule 13 of the Industrial Court (Procedure) Rules 2010, a responding party need not file a memorandum of appearance or notice of appointment before filing a response; the response itself is the defence. On the second issue, the court found that the response filed over 90 days after service, without prior leave under rule 13(4), was incompetent. However, invoking Article 159 of the Constitution and section 20(1) of the Industrial Court Act, and noting that no judgment had been entered and that the claimant was willing to excuse the late filing if granted leave to reply, the court declined to strike out the response. The objection was dismissed, the claimant was granted seven days to file and serve a reply, and no order was made as to costs. The judge additionally recommended amendment of the rules to permit filing of a memorandum of appearance before a response.

Key legal issues

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01

Correct procedure for filing a defence in Industrial Court proceedings

Holding

A memorandum of appearance or notice of appointment is not required; only a response need be filed, which is in essence the defence.

Reasoning

Rule 13(1) of the Industrial Court (Procedure) Rules 2010 requires only that a party served with a statement of claim or memorandum of appeal file and serve a response within fourteen days. The rules do not contemplate a memorandum of appearance or notice of appointment as a precondition to filing a response. The Notice of Appointment filed through FKE was therefore unnecessary and not informed by law or practice, and the objection on this ground failed.

p. 2
02

Whether failure to file and serve pleadings within the statutory period renders the pleading a nullity

Holding

A response filed outside the 14-day period without leave is incompetent, but the court, exercising discretion under Article 159 of the Constitution and section 20(1) of the Industrial Court Act, declined to strike it out.

Reasoning

Rule 13(1) is mandatory: the response must be filed and served within 14 days, with rule 13(4) allowing extension or reduction on application. The respondent filed her response over 90 days after service without prior leave, rendering it incompetent. However, no judgment had been entered, and the claimant's counsel indicated willingness to excuse the late response if granted leave to reply. The court invoked the overriding objective of substantive justice to admit the response and grant the claimant leave to reply.

p. 2

Legal principles established

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  • Under rule 13 of the Industrial Court (Procedure) Rules 2010, a responding party need not file a memorandum of appearance or notice of appointment before filing a response; the response itself is the defence.
  • A response filed out of the 14-day period in rule 13(1) without prior leave under rule 13(4) is incompetent, but the court may nonetheless excuse the irregularity in the interest of substantive justice under Article 159 and section 20(1) of the Industrial Court Act, particularly where no judgment has been entered.

Court orders

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  1. 1.The objection is dismissed
  2. 2.Leave granted to the claimant to file and serve a reply to the response within 7 days
  3. 3.No order as to costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010rule 13(1), 13(4)
  • Constitution of KenyaArticle 159
  • Industrial Court Actsection 20(1)
Jurisdiction invoked
Article 159 of the Constitution and section 20(1) of the Industrial Court Act; Industrial Court (Procedure) Rules 2010, rule 13

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, "WALTER WANYAMA & 4 OTHERS V ITA MARINE CO. LIMITED [2013] KEELRC 576 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/576/eng@2013-02-21

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