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ELRCOtherNot stated in judgment· [2013] KEELRC 788 (KLR)

Philip N. Onchwari v Gusii Mwalimu Sacco Ltd [2013] KEELRC 788 (KLR)

Industrial Court of Kenya
27 September 2013
RSRadido Stephen
658 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a directions ruling in a cause for wrongful termination of employment filed on 28 April 2009. The cause was heard by Chemmutut J on 23 July 2009 and 13 May 2010, who announced he would deliver an award on notice but ceased acting as judge in 2012 before doing so. When new judges took office in July 2012, the file was allocated to Radido Stephen J. Multiple mention dates were fixed but the parties repeatedly failed to appear. On 12 July 2013 the parties filed a consent that the matter be transferred to the Industrial Court of Kenya at Kisumu for disposal. The Judge noted that the Industrial Court (Procedure) Rules 2010 did not explicitly provide for matters partly heard by judges of the previous Court, but that rule 21 would have permitted determination on the basis of pleadings, affidavits, documents and submissions with the parties' agreement. The Judge stated he would have prepared and delivered an award on that basis had the parties agreed, but since they preferred disposal in Kisumu, and the cause of action arose in Kisii which is nearer Kisumu, hearing in Mombasa or Nairobi would impose significant costs on the parties and would not be just. The court directed that the file be transmitted to Kisumu for disposal and that the Deputy Registrar notify the parties to appear there for further directions. Delivered in Mombasa on 27 September 2013.

Key legal issues

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Disposal of causes partly heard by former judges who delivered no award

Holding

The court may proceed under rule 21 with parties' agreement, but where parties instead consent to transfer, the file should be transmitted to the convenient registry.

Reasoning

The cause had been heard by Chemmutut J, who ceased acting before delivering an award. Rule 21 would have allowed determination on pleadings, affidavits, documents and submissions, but the parties filed a consent that the matter be transferred to Kisumu. The cause of action arose in Kisii, nearer Kisumu, and hearing in Mombasa or Nairobi would impose significant costs on the parties, which would not be just. The court deferred to the parties' preference.

p. 2

Legal principles established

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  • Where parties consent, a partially heard cause may be transferred to a more convenient registry for disposal rather than determined on the existing record.

Court orders

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  1. 1.The file be transmitted to the Industrial Court of Kenya at Kisumu for disposal
  2. 2.The Deputy Registrar of this Court to notify the parties that the file has been taken to Kisumu and that they should appear before the Deputy Registrar Kisumu/Judge for further directions

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 21
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, rule 21

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, "Philip N. Onchwari v Gusii Mwalimu Sacco Ltd [2013] KEELRC 788 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/788/eng@2013-09-27

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